Somashekar and Others vs Gaonkar R.N. and Others

H. Billappa, J.—1. These two appeals are directed against the judgment and decree dated 30th January 2010, passed by the Civil Judge (Sr.Dn.), Kumta, in O.S. No. 3/2008.

By the impugned judgment and decree, the trial Court has decreed the suit of the plaintiff declaring that the compromise decree dated 17.02.1988, passed by the Civil Judge (Jr.Dn.), Kumta, in O.S. No. 178/1987 is vitiated by fraud. Further, it is declared that the plaintiff is entitled for 1/4th share in the suit ''A'' schedule properties except Item No. 4 and 1/4th share in the suit ''B'' schedule property. The claim of the plaintiff in respect of the suit ''C'' and ''D'' schedule properties is dismissed.

Aggrieved by the judgment and decree passed in O.S. No. 3/2008, the defendant No. 3 has preferred RFA No. 3108/2011. The plaintiff has preferred RFA No. 721/2010 challenging the finding on issue No. 1 and rejection of his claim in respect of suit ''C and TT schedule properties.

The first respondent in RFA No. 3108/2011 is the plaintiff, the respondents 2 and 3 are the defendants 1 and 2 and the appellant is defendant No. 3.

For the sake of convenience, the parties will be referred to with reference to their rank in the original suit O.S. No. 3/2008.

Briefly stated the facts are; That the plaintiff -Gaonkar R.N. i.e., the appellant in RFA No. 721/2010 filed suit in O.S. No. 3/2008 for declaration that the compromise decree dated 17.02.1988, passed by the Munsiff, Kumta in O.S. No. 178/1987 is vitiated by fraud and not binding on the plaintiff. Further, for declaration that the plaintiff has got 1/4th share in the suit schedule properties and to effect partition by metes and bounds.

The case of the plaintiff was late Sri. Sannappa Venkanna Naik Gaonkar and the defendant No. 2 are the father and mother of the plaintiff. The defendants 1 and 3 are the brothers of the plaintiff. The plaintiff had great faith, love and affection for the defendants and his late father. The plaintiff joined Military Service at the age of 19 years and served the Military till the year 2004. The plaintiff retired from service in the year 2004. It is stated, late Sri. Sannappa Venkanna Naik @ Gaonkar and the defendants have hatched a plan to deprive the legitimate share of the plaintiff in the ancestral joint family properties. The defendants and his late father have colluded together and managed to file a collusive suit for partition in O.S. No. 178/1987, on the file of Munsiff, Kumta. The defendant No. 1 is the plaintiff in the said suit. The suit is filed against defendants 2 and 3 and their late father who is defendant No. 1 in the said suit. The suit has been compromised on 17.02.1988 and compromise decree has been passed on 17.02.1988. In the said compromise decree only 3 guntas and 4 annas of land in Hiregutti Sy. No. 514/6 was allotted to the share of the plaintiff. No share was allotted to defendant No. 2 and late Sannappa, the father of the plaintiff. It is stated, more than double the share was allotted to defendants 1 and 3.

It is stated, there was no occasion for the plaintiff to give power of attorney to his late father Sri. Sannappa Venkanna Naik Gaonkar. The signature on the power of attorney is not of the plaintiff. The parents and brothers of the plaintiff are well acquainted with the signature of the plaintiff and they have forged the signature of the plaintiff on the power of attorney. At the time, when the power of attorney was executed, the plaintiff was residing at Madras. The plaintiff was not aware of the partition suit and the compromise decree. The defendants have played fraud on the plaintiff and also the Court and obtained the compromise decree. The compromise decree is inequitable and vitiated in law.

Further, it is stated that the suit ''C and ''D'' schedule properties were acquired from the income of the joint family properties. The suit ''C schedule properties are kept in fixed deposits in various financial institutions in the name of plaintiffs and defendants either in joint names or individual names. The suit ''D'' schedule properties are in possessions of the defendant No. 1 and it is in the joint family house. The plaintiff and defendants are in joint possession and cultivation of suit schedule ''A'' properties In the suit schedule properties, the plaintiff has got 1/4th share. It is stated, after retiring from service, the plaintiff went through the record of rights of the joint family properties. To his utter surprise, instead of his father''s name, the name of defendants 1 to 3 appeared in the R.T.C. After enquiry, the plaintiff came to know about the filing of the suit and obtaining the compromise decree. It is stated, the plaintiff came to know about the fraud played by the defendants and late Sri. Sannappa Venkappa Naik in August 2007. Therefore, the plaintiff has prayed for declaration that the compromise decree is vitiated and not binding on him and also for partition and separate possession of the suit schedule properties.

The defendants 1 to 3 have filed their written statement denying the plaint averments. It is denied that the defendants hatched a plan to deprive the legitimate share of the plaintiff in the ancestral joint family properties. It is also denied that the suit was collusive suit. It is stated, the suit filed by the first defendant for partition was in accordance with law. It is stated, the compromise decree was signed by both the parties. The plaintiff had executed general power of attorney and had authorized his father to represent him and to compromise the matter. The compromise decree is binding on the plaintiff. Further, it is stated that the compromise decree acts as Res judicata as the compromise decree remains unchallenged. It is stated, after the lapse of twenty years, the plaintiff has filed frivolous suit only to harass the defendants. The father of the defendants and the plaintiff Sri Sannappa Venkanna Naik @ Gaonkar is no more. Many changes have taken place within the last 20 years in respect of the property allotted in the previous partition. Therefore, the plaintiff cannot file the suit or challenge the decree.

It is stated, the plaintiff has executed the power of attorney and the signature on the power of attorney is the signature of the plaintiff. It is denied that the suit ''C & TT schedule properties are acquired from the income of the Joint Family properties and that ''C Schedule Properties are kept in Fixed Deposit in various financial institutions in the name of plaintiff and the defendants either in the joint name or in the individual names. It is stated, suit ''C'' schedule properties belong to defendant No. 2 and it is her self acquired property. Similarly, suit TT schedule property is the exclusive property of defendant No. 1. The plaintiff has no right to claim the share in the said property.

It is denied that the plaintiff after retirement from service went through the records of rights and came to know about the compromise decree. It is stated, the plaintiff was aware of the compromise decree. He had executed General Power of Attorney in favour of defendant No. 3 on 26.6.1996. On the strength of the said power of attorney, the defendant No. 3 had purchased from his own funds the land bearing Sy. No. 48/13K measuring 1 acre. Thereafter, the plaintiff without the knowledge of defendant No. 3 has sold the said land to somebody else. Further, it is stated, the plaintiff after taking sufficient money from the father purchased several securities and encashed them. Thereafter, the plaintiff has filed false cases against defendant No. 1 in C.C. No. 30/2007, 32/2007 and 34/2007, which are pending on the file of Addl. JMFC, Kumta. It is stated, the plaintiff has admitted the money granted by his father and has denied his own signature. The plaintiff is a person who lies every time. It is denied that the plaintiff is entitled for 1/4th share as claimed.

Further, it is stated, the compromise decree was in the interest of the joint family. In the year 1996, the defendant No. 3 obtained loan of Rs. 1,25,000/- from Karnataka Land Development Bank, Kumta for construction of the house. In the year 2003, the defendant No. 3 obtained loan of Rs. 3 lakhs from the Syndicate Bank, Gokarna and developed the property, which was allotted to his share. Defendant No. 3 has constructed a farmhouse in item No. 2 of ''B'' schedule property. The house and the property exclusively belong to defendant No. 3. The plaintiff or anybody else have no right to claim partition. Item No. 1 of the ''B'' schedule properties exclusively belongs to the mother and defendant No. 1. The plaintiff has no right to claim share in the said property. It is stated, the decree passed in O.S. No. 178/1987 binds all the parties, therefore, the plaintiff is not entitled for any share. Therefore, defendants 1 to 3 have prayed for dismissal of the suit.

The trial Court has framed the following issues:--

"1. Does the plaintiff prove that in the suit filed in O.S. No. 178/1987 before the Munsiff, Kumta, the parties in the suit being his parents and brothers and well acquainted with his signature forged his signature on the Power of Attorney and got managed to pass a compromise decree by the Court?

Does he further prove that, the compromise decree dated 17-2-1988 in O.S. No. 178/1987 is vitiated by fraud and as such not binding upon him?

Does he further prove that, he is entitled for partition and separate possession of his 1/4th share by metes and bounds in all the suit schedule properties as claimed?

Does he further prove that, he is entitled for the relief of declaration as sought against the defendants?

Do the defendants prove that, the suit of the plaintiff is hit by principle of Res-judicata?

Do they further prove that, after passing of compromise decree in the suit they have made improvements in the properties allotted as per the compromise decree to their share?

Whether the plaintiff is entitled for the reliefs as prayed against the defendants?

To what order or decree the parties are entitled for?"

The trial Court considering the material on record has answered issue Nos. 2 and 4 in the affirmative and issue Nos. 1, 3, 5 & 6 in the negative and issue No. 7 holding the plaintiff is entitled for declaration except for the share in the suit ''C & TT schedule properties and item No. 4 of the ''A'' schedule property. Consequently, the trial Court has decreed the suit declaring that the compromise decree dated 17.2.1988 passed in O.S. No. 178/1987 is vitiated by fraud and not binding on the plaintiff. Further, it is declared that the plaintiff is entitled for 1/4th share in the suit ''A'' schedule properties except item No. 4 and 1/4th share in the suit ''B'' schedule properties. The claims of the plaintiff in respect of suit ''C & ''D'' schedule properties has been dismissed.

Aggrieved by that, the defendant No. 3 has preferred RFA No. 3108/2011. The plaintiff has preferred RFA No. 721/2010.

Heard the learned Counsel for the parties.

The learned Counsel for the appellant in RFA No. 3108/2011 i.e., defendant No. 3 contended that the impugned Judgment and Decree cannot be sustained in law. He also submitted that the compromise decree passed in O.S. No. 178/1987 in the year 1988 was in the best interest of the family. The plaintiff was represented by his late father, who was also a party to the suit in O.S. No. 178/1987. The plaintiff''s father has admitted the compromise for himself and also on behalf of the plaintiff. After the lapse of more than 20 years, the plaintiff has filed the suit challenging the compromise decree. The trial Court has failed to consider this. Further, though the plaintiff has denied the execution of the power of attorney Ex. D1 and alleges forgery, he has admitted his signature in Ex. D1. The trial Court has held that the execution of the power of attorney in favour of the father of the plaintiff is proved, but, holding that the partition is inequitable has set aside the compromise decree after the lapse of more than 20 years which is not correct. The plaintiff has acted through his father or his brother as power of attorney holders when he was in service. The plaintiff''s father had nothing to gain. Though the plaintiff was aware of the compromise decree and it was acted upon, after the lapse of more than 20 years, the plaintiff has challenged the compromise decree on the ground of fraud, which is not correct. The compromise decree was passed in the year 1988. All the parties including the plaintiff represented by his father have signed the compromise petition. The parties have acted upon the compromise decree. Mutation has been effected. Infact, the property allotted to the share of the plaintiff has been sold by the father of the plaintiff through Ex. P20 and mutation has been effected as per Ex. P21. Further, the plaintiff has executed general power of attorney in favour of his brother i.e., defendant No. 3 as per Ex. D2. The defendant No. 3 has purchased 1 acre of land in Sy. No. 48/13K of Nadumaskeri village in the name of the plaintiff. Subsequently, the plaintiff without the knowledge of defendant No. 3 has sold the said property in favour of Lakshmana s/o Venkanna Gaonkar and Venkanna Venktramana Naik and mutation has been effected as per Exs. D9 and D10. The evidence on record clearly shows that the plaintiff was aware of the compromise decree and it is acted upon. The plaintiff has filed a frivolous suit. Further, he submitted that the plaintiff has not proved the existence or availability of suit ''C & ''D'' schedule properties for partition. Therefore, the trial Court has rightly dismissed the suit in respect of suit ''C & TT Schedule properties. He therefore submitted that the trial Court was not justified in declaring that the compromise decree is vitiated by fraud and granting share to the plaintiff in the suit ''A'' and ''B'' schedule properties. It needs to be set aside. He placed reliance on the decisions of this Court reported in , AIR 2006 Karnataka page 127 and : ILR 1999 Karnataka page 613.

As against this, the learned Counsel for the plaintiff i.e., the appellant in RFA No. 721/2010 and first respondent in RFA No. 3108/2011 contended that the impugned Judgment and Decree insofar as it relates to granting of share and declaration that the compromise decree is vitiated by fraud is concerned, it does not call for interference. The trial Court on proper consideration of the material on record has rightly held that the partition was inequitable and it does not bind the plaintiff. But, the trial Court was not justified in declining share to the plaintiff in the suit ''C'' & ''D'' schedule properties. He also submitted that the power of attorney was not executed by the plaintiff and it is forged. Even assuming that power of attorney was executed, then also, the partition is inequitable. Therefore, the trial Court was justified in declaring that the compromise decree is vitiated by fraud and granting share to the plaintiff in the suit ''A'' & ''B'' schedule properties. But the trial Court was not justified in rejecting the claim of plaintiff in respect of suit ''C & TT schedule properties. Therefore, the Judgment and Decree of the trial Court may be modified granting share in the suit ''C & TT schedule properties also.

We have carefully considered the submissions made by the learned counsel for the parties.

The points that arise for our consideration are:

"(1) Whether the Trial Court was justified in holding that the compromise decree passed in O.S. No. 178/1987 is vitiated by fraud and granting share in the suit VT and ''B'' schedule properties?

(2) Whether the Trial Court was justified in rejecting the claim of the plaintiff in respect of suit ''C'' and ''D'' schedule properties?

(3) Whether the impugned judgment and decree calls for interference?"

POINT No. (1)

It is relevant to note, the suit is for declaration that the compromise decree passed in O.S. No. 178/1987 is vitiated by fraud and for partition and separate possession of the suit schedule properties. The plaintiff contends that the suit schedule properties are ancestral joint family properties and he is entitled for a share. The defendants have played fraud on the plaintiff. They have colluded together and filed a collusive suit and obtained compromise decree in O.S. No. 178/1987 which is not binding on the plaintiff. The plaintiff is entitled for 1/4th share in the suit schedule properties.

The defendants have contended that the decree passed in O.S. No. 178/1987 is in accordance with law. The suit is not a collusive suit. The plaintiff had executed power of attorney in favour of his father authorizing him to effect partition. The plaintiff has also executed power of attorney in favour of the defendant No. 3. Pursuant to that, the defendant No. 3 had purchased land in Sy. No. 48/13K of Nadumaskeri Village measuring 1 acre. Thereafter, without the knowledge of the defendant No. 3, the plaintiff has sold the said property in favour of the third parties. The plaintiff was aware of the compromise decree. After the lapse of more than 20 years, the plaintiff has filed a frivolous suit. It may be dismissed.

The Trial Court considering the material on record has held that the plaintiff has failed to prove that his signature on the power of attorney is forged and on the basis of the forged power of attorney the defendants have managed to obtain the compromise decree. While recording the said finding, the Trial Court has taken into consideration the admission made by the plaintiff in his cross-examination that the signature in the power of attorney Ex. D1 is his signature. Further, in detail, the Trial Court has discussed at paras 12, 13, 14 and 15 of its judgment considering all aspects and has held that the plaintiff has failed to prove that his signature was forged and based on the forged power of attorney, the defendants have managed to obtain the compromise decree. We agree with the said finding recorded by the Trial Court. The reasons given by the Trial Court are valid and acceptable. Therefore, we accept the same.

Having held that the power of attorney was not forged, the Trial Court has proceeded to decree the suit holding that the partition is inequitable and vitiated by fraud. The recitals in Ex. D1 power of attorney at paras 5 and 6 read as follows:

"5) If my attorney deems necessary that a partition of the properties mentioned above are to be effected among himself and my brothers and my mother, equitable partition may be made.

6) In case if equitable partition cannot be made in respect of these properties, I may be provided with other properties by purchase, equal to my share. My attorney is empowered to execute to family arrangement also in respect of the above mentioned properties."

It is clear, the plaintiff has authorized his father to effect partition among the plaintiff, his brothers and mother. It is also stated, in case if the partition is not equitable, the plaintiff may be provided with other properties by purchase equal to his share. It is clear from Ex. D1 that the plaintiff has authorized his father to effect partition amongst the family members. Thereafter, the defendant No. 1 has filed suit in O.S. No. 178/1987 for partition of the family properties. The plaintiff, his father, mother and brothers were parties to the partition suit. They have compromised the matter and compromise petition has been filed as per Ex. D3. Accepting the compromise, the Trial Court has decreed the suit on 17.2.1988. Thereafter, the parties have acted upon the compromise decree and mutation has been effected. Infact, the property allotted to the share of the plaintiff has been sold by his father as power of attorney holder through Ex. P20 -sale deed and mutation has been effected as per Ex. P21. Thereafter, the plaintiff has executed power of attorney dated 24.06.1996 in favour of his brother i.e., defendant No. 3 as per Ex. D2 authorizing him to buy the property in his name. Pursuant to that, the defendant No. 3 has purchased the property in Sy. No. 48/13K measuring 1 acre in the name of the plaintiff as power of attorney holder. Subsequently, the plaintiff has sold the said property through sale deed dated 19.4.2006 in favour of Laxman Venkannagoankar and Venkanna Venkatramana Nayaka 20 guntas each and mutation has been effected as per exhibits D9 and D10.

It is clear, the plaintiff has acted through his father and brother as power of attorney holders when he was in service. It is in the evidence of the plaintiff and also DW.1 that the plaintiff used to visit the village frequently when he was in service. It is therefore, the plaintiff cannot contend that he had no knowledge of the compromise decree. After the lapse of 20 years, the plaintiff has filed suit for declaration that the compromise decree passed in O.S. No. 178/1987 is vitiated by fraud. The compromise decree shows that neither the mother nor the father of the plaintiff were allotted any share. The share allotted to the plaintiff has been sold through Ex. P20. The plaintiff has not questioned it. Further, pursuant to the power of attorney executed by the plaintiff in favour of the defendant No. 3, the defendant No. 3 has purchased the property in the name of the plaintiff. The plaintiff himself has sold the said property. Therefore, it is difficult to believe that the family members have played fraud on the plaintiff to obtain the compromise decree. In our considered view, the compromise decree passed in O.S. No. 178/1987 is not vitiated by fraud. Further, the compromise decree is challenged after the lapse of more than 20 years. The Trial Court has failed to consider this. Therefore, in our considered view, the Trial Court was not justified in holding that the compromise decree passed in O.S. No. 178/1987 was vitiated by fraud and granting share to the plaintiff. It needs to be set aside. Accordingly, we set aside the finding of the Trial Court that the compromise decree passed in O.S. No. 178/1987 is vitiated by fraud. Further, granting of share to the plaintiff is also set-aside. Point No. 1 answered, accordingly.

POINT No. 2:

"Insofar as ''C and TT schedule properties are concerned, the plaintiff claims that they are acquired from the income of the joint family properties. The defendants claim that ''C schedule properties are self-acquired properties of the mother Smt. Janaki and TT schedule properties are the exclusive properties of the defendant No. 1. Except the interested version of the plaintiff that ''C and TT schedule properties are acquired from the income of the joint family properties, nothing is produced by the plaintiff to show that ''C'' and ''D'' schedule properties are joint family properties or they are available for partition or they are in existence. Therefore, the Trial Court has rightly dismissed the claim of the plaintiff in respect of ''C and TT schedule properties. We do not find any error or illegality in it. Therefore, it does not call for interference. Point No. 2 answered, accordingly."

POINT No. 3:

"In view of our answer to point Nos. 1 and 2, the impugned judgment and decree passed by the Trial Court granting share to the plaintiff in the suit ''A'' and ''B'' schedule properties cannot be sustained in law. The Trial Court has failed to consider the evidence on record in proper perspective and has erred while declaring that the compromise decree passed in O.S. No. 178/1987 is vitiated by fraud and granting share to the plaintiff in the suit ''A'' and ''B'' schedule properties. It needs to be set-aside."

Accordingly, the appeal in RFA. No. 3108/2011 is allowed. The impugned judgment and decree passed by the Trial Court in O.S. No. 3/2008 granting share to the plaintiff in the suit ''A'' and ''B'' schedule properties by declaring that the compromise decree passed in O.S. No. 178/1987 is vitiated by fraud is hereby set aside. The suit of the plaintiff is dismissed. The appeal filed by the plaintiff in RFA. No. 721/2010 is hereby dismissed. In the circumstances of the case, no order as to costs.