Vokkalingara Sharada vs Vokkaligara Puttamma Major

A.V. Chandrashekara, J.—This is an appeal filed by the plaintiff of an original suit bearing O.S. No. 91/1998 which was pending on the file of the Civil Judge (Sr. Dn.), Virajpet. Suit filed for the relief of partition and separate possession by the plaintiff has been dismissed vide considered judgment dated 14.11.2007. It is this judgment which is called in question on various grounds as set out in the appeal memo.

Respondents herein are the defendant Nos. 1 to 14 as per their ranking given in the Trial Court. During the pendency of this appeal, first defendant who is the mother of the plaintiff died and since plaintiff and remaining defendants are her legal heirs, they have been treated as her legal representatives. Parties will be referred to as the plaintiff and defendants as per their ranking given in the Trial Court.

Facts leading to the filing of the suit are as follows:

One person by name Vokkaligara Boraiah died in the year 1987 leaving behind him, his wife Puttamma, daughters Saraswathy, Devaki, Boji, Sharada-the plaintiff and sons by name Kalappa, Ramaiah, Raju, Ravi and Ganesh. These properties were held by him during his lifetime. The parties are Hindu governed by Mithakshara Law.

Among the sons of Boraiah, Raju died a few years ago leaving behind his wife Padmakshi and two sons by name Praveen Kumar and Naveen Kumar, who are arrayed as defendants 7 to 9. Another son Ganesh died leaving behind him his wife Vimala, daughters Kavitha and Savitha, who are arrayed as defendants 11 to 13.

According to the plaintiff, the suit schedule ''A'' properties as described in the plaint were held by Boraiah at the time of his death. Schedule ''B'' properties have been acquired by Boraih in the names of Padmakshi, his daughter-in-law being the wife of Raju and Ajithkumar, S/o Kalappa and Ravi under a sale deed dated 11.10.1984. Vide another sale deed dated 01.10.1984 he is stated to have purchased the property in the name of his sons V.B. Ramaiah and V.B. Ganesh. According to the plaintiff, ''B'' schedule properties included the properties acquired by Boraiah under sale deed dated 07.09.1982 in the name of his sons Ravi and Ganesh and Padmakshi, wife of his son Raju. It includes the properties purchased by Boraiah vide sale deed dated 28.06.1963 in the name of his wife Puttamma and the properties purchased in the names of Ramaiah, Kalappa, Ramaiah, Raju, Ravi and Ganesh, vide sale deed dated 01.04.1971. It is specifically averred that sons of Boraiah did not have any independent income of their own other than the income of the family properties held and managed by Boraiah.

According to the plaintiff, neither schedule ''A'' properties nor schedule ''B'' properties have been partitioned at any time either during the lifetime of Boraiah or subsequent to his death. Saraswathy''s marriage was solemnized in the year 1960. Devamma''s marriage was solemnized in the year 1965, Boji''s marriage was solemnized in the year 1968 and the plaintiffs marriage was performed in the year 1971. As such, she is entitled to 1/10th share in schedule ''A'' and ''B'' properties, is the averment. She is deemed to be in joint and constructive possession of the suit schedule properties. Inspite of getting a legal notice issued to the defendants, they did not come forward to give her legitimate share and hence, she was forced to file a suit for partition and separate possession.

Defendants 1, 6, 7 and 13 have filed their written statements and defendants 2 to 4 have adopted the said written statement filed by defendants 1, 6, 8 to 13 by filing a memo to that effect. During the pendency of the suit, defendants 3 and 4 died and their legal representatives have been brought on record.

The defendants have admitted the relationship between the parties inter se. The averment that Boraiah died interstate has been specifically denied. According to the defendants, Boraiah has settled all his rights during his lifetime itself and no property was left behind without partitioning the same. The properties belonging to defendants 7 to 13 are ''B'' schedule properties and are not joint family properties as claimed by the plaintiff and that they were not acquired by Boraiah. According to the defendants, schedule properties were divided during the lifetime of Boraiah and therefore, plaintiff cannot claim any partition.

All other properties of Boraiah situated at Kothur and Ballyamandoor Village were partitioned and allotted as shares to his sons and finally settled during his lifetime and separate possession was given to each of the sharer and later on, the allotment was reduced into writing under two memorandums dated 25.11.1965 and 12.09.1986 and they were executed by Boraiah and concerned sharers. According to the plaintiff, under the said partition and settlement of rights Boraiah share was also finalized and therefore no property is available for partition. These facts are stated to be within the knowledge of the plaintiff and other legal heirs of Boraiah.

Suit is stated to have been got filed by V.B. Kalappa instigating the plaintiff and fifth defendant is stated to be the man behind the present suit. On the basis of the legal division effected by Boraiah the area allotted is cultivated by each sharer with coffee and other crops. Suit is stated to be not maintainable and she has to pay the Court fee u/s 35(1) of Karnataka Court Fees and Suits Valuation Act, 1958 and not under 35(2) of the said Act. With these pleadings, they had prayed for dismissal of the suit.

Following issues have been framed on the basis of the above pleadings:

Whether the Plaintiff proves that suit ''A'' and ''B'' schedule properties were acquired by her later father Boraiah as alleged?

Whether the defendants prove that the properties of Sri Boraiah were already partitioned as alleged in para No. 7 of their Written Statement?

Whether the plaintiff is entitled for partition of the suit ''A'' and ''B'' schedule properties?

If so, what are the shares of the parties to this suit?

Whether the plaintiff is entitled for mesne profits? If so, from which date and on what rate?

Plaintiff Vokkaligara Sharada is examined as PW1 and has got marked 15 documents. V.B. Ravi, V.N. Vinayakumar and Ramaiah are examined as DWs.1 to 3 and as many as five documents have been got marked on behalf of defendants.

Issues 1 and 2 have been answered in the affirmative and issues 3 and 4 have been answered in the negative. Hence, suit is dismissed after contest. It is this judgment which is called in question on various grounds as set out in the appeal memo.

We have heard the arguments advanced by the learned counsel for the parties.

After going through the records and after hearing the arguments of the learned counsel, following points arise for our consideration:

Whether the Trial Court is justified in holding that there was already a partition of the properties as averred by the defendants?

Whether the Trial Court is justified in not framing issues in regard to the settlement deed/Will stated to have been executed by Boraiah?

Whether the Trial Court is justified in dismissing the suit?

Whether any interference is called for by this Court and if so, to what extent?

Re. Point No. 1:

On issue No. 2, the Trial Court has given an affirmative finding. The Trial Court has held that the defendants have been able to prove that the properties of Boraiah were already partitioned and reliance is placed upon the averment found in paragraph-7 of the written statement filed by the defendants. Of course, defendants have not filed any cross-objections or appeal insofar as affirmative finding on issue No. 1.

The affirmative finding on issue No. 1 has virtually become final. Defendants have not been able to demonstrate that the acquisition so made by Boraiah were out of the joint family funds. Defendants have not been able demonstrate that Boraiah had ancestral properties or joint family properties at his command and out of the funds derived from those joint family funds all the properties were acquired by him. Suffice to state that the Trial Court is justified in holding that all the schedule properties had been acquired by Boraiah and therefore, he was the absolute owner. Thus finding on issue No. 1 has remained unchallenged.

The Trial Court has come to the conclusion that there was already an earlier partition and reliance is placed upon Ex. D1 an unregistered partition deed dated 25.11.1965. Late Boraiah is stated to have executed that document distributing the lands possessed by him in favour of his sons Kalappa, Ramaiah, Raju, Ravi and Ganesh and retaining certain properties for himself. If Boraiah was the absolute owner of the schedule properties, it is ununderstandable as to how he could effect partition of his self-acquired property amongst his sons. Nothing came in his way to have executed a settlement deed or any other registered deed conveying his right in favour of his five sons. Necessarily such document requires registration. The Trial Court has not attached much significance to Ex. D1 on the ground that it is not a registered document. Even if one were to effect partition of immovable properties except a memorandum reiterating earlier oral partition, requires registration as per Section 17 of Indian Registration Act. Though deficit stamp duty has been recovered by the Trial Court in regard to the admissibility of Ex D1, it does not cure the defect of non-registration. Therefore, the Trial Court is not justified in holding that there was already a partition between Boraiah and his sons based on Ex. D1. Hence, point No. 1 will have to be answered in the negative.

Re. Point No. 2:

Defendants have relied upon Ex. D3 a document dated 09.04.1988 stated to have been executed by Sri Kalappa, V.B. Ramaiah, V.B. Ravi and V.B. Ganesh. Deficit stamp duty has also been collected in regard to Ex. D3. Defendants have treated this document marked as Ex. D3 as a settlement deed. If it is a settlement deed, it definitely requires registration as rights will be settled by the settlor in favour of the settlors. Mere collection of requisite stamp duty on Ex. D3 does not cure the mandatory defect of registration.

Ex. D3 is an unregistered document which 13 styled as odambadike patra. In it there is a reference about a partition effected on. 13.07.1987 and same mistakes being noticed therein. No document dated 13.07.1987 evidencing partition is produced before the Trial Court. Document marked as Ex. D1 is an unregistered partition deed dated 25.11.1965 and Ex. D2 is another unregistered document dated 12.09.1986 referring to Ex. D1. This Ex. D2 is about the allotment of properties retained by Boraiah and his wife Puttamma for maintenance to his children. This is yet another partition deed which is unregistered. But evidence is led on behalf of the defendants as though it is a Will If it is treated as a Will, no issue is framed to that effect.

Mr. Ravi defendant No. 10 has been examined as DW1. He has deposed that his father Boraiah died in the year 1987. It is his case that properties were divided by his father in the year 1965. It is his further case that he himself and his brothers have purchased certain properties after 1965 separately and they are not joint family properties. Admittedly, he has not been able to demonstrate that he himself and other brothers had had independent income to acquire the property. He has relied upon Ex. D1 dated 25.11.1965 to impress upon the Court that it, was already a partition.

A specific discussion is made while giving finding on point No. 1 stating that Ex. D1 is not a document of partition and it cannot be considered as a document evidencing partition. He has relied upon Ex. D2 Settlement Memorandum of Partition stated to have been executed on 12.09.1986 by his father. If Ex. D2 is are considered as Will, no specific issue is framed by the Trial Court in regard to the proof of Will. If there is an averment in regard to a Will and the same is disputed, it necessarily requires proper proof as contemplated u/s 63 of Indian Succession Act and Section 68 of Indian Evidence Act. Since it is a document which needs compulsory attestation, the Trial Court has lost sight of this important fact.

Admittedly, this is an unregistered Will and it has come into light only after several years. No reasons are assigned as to why some property is not given to the plaintiff who is also his daughter. PW''1 has not deposed as to whether his father was in a sound disposing state of mind as on the date of executing Ex. D2.

Vinayakumar, is examined as DW2 and he is stated to be an attestator to Ex. D2. He has identified his signature as Ex. D2(c). If Vinayakumar was aged about 48 years as on the date when he filed his affidavit in lieu of examination-in-chief i.e., in the year 2003. The Will is stated to have come into being in the year 1965. If one were to calculate the age of Vinayakumar as on the date of executing Ex. D2 in the year 1965, he would be hardly 13-14 years. He has deposed that Boraiah, bequeathed his properties on 12.09.1986 Ex. D2 to which he is an attestor. All these things speak in volumes against the due execution of the Will and Boraiah, having executed a Will. This document marked as Ex. D2 can neither be considered as a Will nor a settlement deed. Anyhow, on the basis of the pleadings of the parties, it was incumbent upon the Trial Court to have framed proper issues either in regard to the Will or the settlement Deed relied upon by the defendants.

On re-assessment of the entire evidence, we are of the considered view that the Trial Court is not justified in framing issues relating to the proof of Will or Settlement Deed. Though the defendants have also taken up a plea of settlement being made by their father, they have considered it as a partition. Viewed from any angle, the approach adopted by the Trial Court is incorrect and improper in appreciating the contents of both Exs. D1 to D3. Hence, point No. 2 is answered in the negative.

Re. Point Nos. 3 and 4:

In view of findings on point Nos. 1 and 2, the Trial Court is not justified in dismissing the suit. Interference is called for by this Court, more particularly, when the first defendant Puttamma died during the pendency of the suit. Her share also needs to be allotted as she has died intestate. In the light of not framing specific issues either in regard to the Will or Settlement Deed and in the light of not properly appreciating the evidence placed on record, the matter will have to be remitted to the Trial Court to give opportunities to the parties in order to lead additional evidence, if any, after framing proper issues. Thereafter, the Court will have to dispose of the matter comprehensively.

ORDER

Appeal filed u/s 96 CPC is allowed. Consequently, the judgment and decree passed in O.S. No. 91/1998 pending on the file of the Court of Civil Judge (Sr. Dn.), Virajpet, is set aside. Matter is remitted to the Trial Court to frame appropriate issues on the basis of the pleadings of the parties, more particularly, in regard to the Will/Settlement Deed relied upon by the defendants and to give proper opportunities to the parties to lead additional evidence, if any.

Since the matter is quite old, the parties shall appear before the Trial Court on 31st October 2014 without foil and thereafter, the Trial Court shall try to dispose of the matter within nine months from the date of first appearance. Parties and Advocates to co-operate with the Court in disposing of the matter within the time fixed by this Court.

In view of the relationship between the parties, there is no order as to costs.