Subraya M.N. v. Vittala M.N. And Others

R. Banumathi, J.— Leave granted. This appeal is preferred against the judgment dated 20-3-2008 passed by the High Court of Karnataka in Subraya M.N. v. Vittala M.N. 2008 SCC OnLine Kar 774 dismissing the appeal preferred by the appellant-defendant and thereby confirming the judgment and decree for partition passed by the trial court.

2. Briefly stated, the case of the respondent-plaintiffs is as follows: the appellant-defendant and the respondent-plaintiffs are the sons of one late Narayana. The suit scheduled property comprises of Item 1 bearing S. No. 69/69 measuring 1.00 acre; Item 2 bearing S. No. 69/70 measuring 0.25 acre and Item 3 bearing S. No. 69/5C2 measuring 1.00 acre. Items 1 and 2 are the joint family property of late Narayana. Narayana died in the year 1962. Plaintiffs 3 and 4 were working in the Army and were sending money to the joint family and the joint family affairs were run by the appellant-defendant. Respondents 3 and 4 retired from the Army in the years 1988 and 1989 respectively. House in Item 2 was constructed in the year 1980 from out of the joint family income and the contribution made by Respondents 3 and 4. Late Narayana was in possession of suit property Item 3 and had converted the same from forest land to a wetland and the same was further developed from out of the joint family income and the contribution made by Respondents 3 and 4. The respondent-plaintiffs averred that taking advantage of the absence of the plaintiffs, the appellant filed an application to the Tahsildar for grant of patta for Item 3, S. No. 69/5C2 which was opposed by the respondents. Alleging that the appellant is attempting to grab the suit properties, the respondent-plaintiffs filed the suit for partition claiming 1/5th share to each of them.

3. In the written statement, the appellant-defendant claimed that so far as Items 1 and 2 are concerned, Plaintiffs 1 and 2 have sold their shares — 0.50 acre of land to the defendant and the third plaintiff as per sale deed dated 28-4-1976 and the plaintiffs have no right to claim partition in Items 1 and 2. It is further averred that there was a panchayat in the village on 18-3-1995 wherein Plaintiffs 3 and 4 and the defendant participated and it was agreed between the parties that the defendant will give Rs 50,000 to Plaintiffs 3 and 4 and the defendant will have all rights over Items 1 and 2. So far as suit property in Item 3 is concerned, the appellant-defendant claimed that he had encroached the said area of 1.25 acres in S. No. 69/5C2 in the year 1962 and converted the same into wetland and applied to the Government to regularise his encroachment. After enquiry, the Revenue Authorities have granted patta to the defendant and hence Item 3 is the self-acquired property of the defendant and the plaintiffs have no right to claim any share.

4. On the above pleadings, the trial court framed five issues. Plaintiffs 3 and 4 were examined as PWs 1 and 2 and two more witnesses were examined as PWs 3 and 4. The defendant examined himself as DW 1 and examined four other witnesses. During the course of trial, Respondents 1 and 2—Plaintiffs 1 and 2 were examined as CWs 1 and 2 and they have stated that they have no claim or right in Items 1 and 2.

5. Upon consideration of evidence, the trial court held that sale deed (Ext. D-13) dated 28-4-1976 is proved and the said sale is only by Plaintiffs 1 and 2 and not by Plaintiffs 3 and 4 and they cannot be said to have relinquished their right by virtue of resolution of panchayat or receipts produced as Exts. D-14 and D-23 as there can be no relinquishment without any registered documents and on those findings held that Plaintiffs 3 and 4 are entitled to 1/3rd share each in Items 1 and 2. So far as Item 3 is concerned, the trial court held that the defendant has failed to prove that the sum of Rs 3489 paid by him towards the T.T. fine was from out of his own income and held that Plaintiffs 3 and 4 are entitled to 1/3rd share each in Item 3 also.

6. Being aggrieved, the defendant preferred appeal before the High Court in RFA No. 805 of 1998. Affirming the judgment of the trial court, the High Court held that in the absence of any conveyance deed, on the basis of Exts. D-14 and D-23, it cannot be held that the share of Plaintiffs 3 and 4 is transferred to the defendant. So far as Item 3 is concerned, the High Court held that the patta was granted in favour of the defendant after filing of the suit and the defendant has failed to prove his independent income to pay the amount for grant of land and on those findings dismissed the appeal filed by the appellant. Being aggrieved, the appellant is before us.

7. The learned counsel for the appellant submitted that so far as Items 1 and 2 are concerned, the plaintiffs have forfeited their right after receiving the money paid by the defendant and the courts below have failed to appreciate the oral and documentary evidence. It was submitted that the courts below failed to appreciate that Item 3 was developed and cultivated by the defendant, in recognition of which patta was granted by the Government to the defendant on 19-6-1997 and the courts below erred in treating Item 3 of the suit scheduled property as a joint family property. It was submitted that Item 3 was never in the possession of late Narayana and that patta had been granted to the defendant after rejecting the objections made by Plaintiffs 3 and 4, which was not properly appreciated by the High Court.

8. Per contra, the learned counsel for Plaintiffs 3 and 4 contended that the appellant-defendant failed to discharge his burden of proving that the plaintiffs have forfeited their shares in Items 1 and 2 of the suit scheduled property. It was further contended that it is brought on evidence that Item 3 of the suit scheduled property was in the possession of late Narayana who had developed the same and the defendant cannot regard Item 3 as his self-acquired property. On behalf of the plaintiffs, it was urged that the courts below have recorded concurrent findings that Plaintiffs 3 and 4 are entitled to 1/3rd share in each of the suit scheduled property and the said concurrent findings cannot be interfered with.

9. We have carefully considered the rival contentions and perused the impugned judgment and material on record.

10. So far as the relationship between the parties is concerned, it is not in dispute that the defendant and the plaintiffs are sons of late Narayana. It is also available on record that Narayana had two daughters who are married and have not claimed any right with regard to the suit scheduled property. The mother of the plaintiffs died in the year 1987. Plaintiffs 1 and 2 examined in the trial court as CWs 1 and 2 have stated that they do not claim share in the suit properties. Consequently, the dispute pertaining to partition of the suit scheduled property was limited to Plaintiffs 3 and 4 and the appellant-defendant.

11. So far as Item 1 in S. No. 69/69 measuring 1.00 acre; Item 2 in S. No. 69/70 measuring 0.25 acre are concerned, Plaintiffs 1 and 2 have executed a registered sale deed (Ext. D-13) dated 28-4-1976 in favour of Plaintiff 3 and the defendant and under the sale deed they have sold their shares of 50 cents each (25 cents + 25 cents). So far as Plaintiffs 3 and 4 are concerned, the case of the defendant is that Plaintiffs 3 and 4 agreed to receive a sum of Rs 50,000 in lieu of their shares in Items 1 and 2 of the suit scheduled property. The defendant had produced Ext. D-14 (dated 19-5-1995) executed by Plaintiff 3 for Rs 20,000 in favour of the defendant and Ext. D-23 (dated 12-12-1994) said to have been executed by Plaintiff 4 in favour of the defendant in lieu of his share in the property Items 1 and 2. In his evidence, defendant, DW 1 stated that a panchayat was held in the village on 18-3-1995 in which Plaintiffs 3 and 4 and the defendant participated and a resolution (Ext. D-22) was passed in the panchayat. Ext. D-22 is the resolution of the village panchayat which is signed by the panchayatdars, the defendant and Plaintiffs 3 and 4 in the presence of panchayatdars. The said resolution reads as under:

“… It has been decided that Subraya will be given the residential house and 40 cents of coffee estate being the shares of Gopal and Lingappa agreed to be sold absolutely to Subraya at Rs 50,000 each. Out of the amount of Rs 20,000 has already been paid by Subraya to Gopal and Lingappa and remaining amount of Rs 30,000 is agreed to be paid by Subraya in two instalments i.e. at Rs 15,000 each and the 1st instalment of Rs 15,000 will be paid before 30-4-1996 to the said Gopal and Lingappa and can obtain receipt therefor and the balance of Rs 15,000 is agreed to be paid by Subraya on 15-4-1997 along with the bank rate of interest, that is to say, effective from 18-3-1996 to be discharged through the panchayat and obtain necessary receipt for the same. Gopal and Lingappa have relinquished their rights over the property and handed over the same to Subraya today itself. If the parties to these proceedings do not perform their part of contract and fail to act, they will be held liable and responsible for the consequences. Subraya will have all the rights over the property and the house henceforth and enjoy the same and Gopal and Lingappa agree to cooperate with Subraya in perfecting his title.”

The case of the defendant is that the panchayat resolution has been acted upon and that the defendant has paid a sum of Rs 15,000 each to Plaintiffs 3 and 4.

12. To substantiate his plea that there was a panchayat in which Plaintiffs 3 and 4 have relinquished their rights in Items 1 and 2 of the suit properties, the defendant has examined C.D. Annaiah (DW 2) who deposed that Plaintiffs 3 and 4 have received money from the defendant in respect of Items 1 and 2. He further stated that as per the panchayat resolution Ext. D-22, defendant had also paid a sum of Rs 15,000 to each of the plaintiffs. DW 3, Belliyappa who is the brother-in-law of the plaintiffs and the defendant i.e. husband of their sister by name Poovamma has stated about the panchayat and that money was paid by the defendant to Plaintiffs 3 and 4 and the third plaintiff signed the receipt (Ext. D-14) and Ext. D-23 is the receipt pertaining to Plaintiff 4 and he has not signed in the receipt.

13. The defendant has also examined DW 4, C.B. Muthappa who is the Chairman of Kanoor Village Panchayat had deposed that the panchayat was held between the parties regarding dispute in respect of the suit property Items 1 and 2. He had produced Ext. D-34 resolution book of the panchayat containing the original resolution Ext. D-22 dated 18-3-1995.

14. Considering the plea of relinquishment of their rights by Plaintiffs 3 and 4 in Items 1 and 2, after referring to Ext. D-22 resolution and the oral evidence, the trial court as well as the High Court held that in the absence of any conveyance deed Exts. D-14, D-23 and D-22, it cannot be established that Plaintiffs 3 and 4 have forfeited their rights in respect of Items 1 and 2 of the suit scheduled property. The courts below have recorded findings that even though Ext. D-14 bears signature of Plaintiff 3, Ext. D-23 does not bear the signature of Plaintiff 4. It was further held that those two receipts do not indicate that the amount has been received by Plaintiffs 3 and 4 in lieu of their shares in Items 1 and 2 of the suit scheduled property and mere production of Ext. D-14 and Ext. D-23 receipts is not helpful to the appellant-defendant to contend that Plaintiffs 3 and 4 have forfeited their rights in respect of their shares in Items 1 and 2. Even though Exts. D-14 and D-23 do not contain the survey number, as noticed earlier, Ext. D-22 panchayat resolution refers to suit scheduled property Items 1 and 2 in S. No. 69/69 measuring 1.00 acre and S. No. 69/70 measuring 0.25 acre and that amount of Rs 20,000 has already been paid by the defendant to Plaintiffs 3 and 4. As pointed out earlier, Ext. D-22 resolution is signed by Plaintiffs 3 and 4 and also by the panchayatdars. In our considered view, the trial court as well as the High Court was not right in brushing aside the oral and documentary evidence adduced by the defendant to prove that Plaintiffs 3 and 4 have relinquished their rights in Items 1 and 2 of the suit scheduled property.

15. Under Section 17 of the Registration Act, the documents which purport or operate to create, declare, assign, limit or extinguish any right, title or interest of the value of one hundred rupees and upwards, are to be registered. Under Section 49 of the Registration Act no document required by Section 17 or by any provision of the Transfer of Property Act to be registered shall be received as evidence of any transaction affecting an immovable property. As provided by Section 49 of the Registration Act, any document, which is not registered as required under the law would be inadmissible in evidence and cannot therefore be produced and proved under Section 91 of the Evidence Act.

16. Even though recitals in Ext. D-22 are to the effect of relinquishment of right in Items 1 and 2, Ext. D-22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ext. D-22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in Items 1 and 2.

17. The plaintiffs have denied the contention of the defendant that Plaintiffs 3 and 4 have received consideration from the defendant in lieu of relinquishing their claim for Items 1 and 2 of the suit scheduled property. The contention of the plaintiffs is that all the brothers have cultivated the suit property and have contributed towards the development of the land belonging to their family and also contributed for the construction of the house in Item 2 of the suit property. Plaintiff 3 had produced Exts. P-8 to P-29, MO receipts and acknowledgment cards showing that the defendant received the amount sent under the money order in the name of the defendant.

18. The fourth plaintiff Gopal had also deposed to the same effect that he has not forfeited his claim in Items 1 and 2 of the suit scheduled property and he has contributed in the construction of the house in Item 2 of the suit scheduled property. Plaintiff 4 Gopal has also produced money order receipts Exts. P-33 to P-36 to show that he was sending money to the defendant for cultivation of the land and also produced Exts. P-30 and P-31 regarding purchase of building material. Money order receipts produced by Plaintiffs 3 and 4 show that they have sent money to the defendant. But the fact remains that the mother of the plaintiffs and the defendant was residing with the defendant and she died in the year 1987. Money order could have been sent by Plaintiffs 3 and 4 for the maintenance of the mother. In fact, second plaintiff Ananthaiah (CW 2) has stated that Plaintiffs 3 and 4 used to send small amounts of money to their mother when they were in the Army. That being so, the case of Plaintiffs 3 and 4 that the amount was sent only for the development of land and construction of the house ought not to have been accepted by the trial court and the High Court.

19. As discussed earlier, when the terms of the family settlement/arrangement between the parties have been reduced to writing, it has to be registered. But in the facts and circumstances of this case and the conduct of the parties, Ext. D-22 appears to record the family settlement already arrived at between the parties. That Ext. D-22 resolution was acted upon is also supported by the subsequent conduct of the parties. Plaintiffs 3 and 4 retired from the Army in 1988 and 1989 respectively. In his evidence, third plaintiff Lingappa has stated that after his retirement he had purchased 1.00 acre of land in Thithimathi Village and that he had constructed a good house there. The third plaintiff has been working as a watchman in State Bank of Mysore at Hunsur and his wife was working in the Family Welfare Department as a warden and the third plaintiff was residing separately with his wife and family. The third plaintiff had also admitted that he made an application to the Government for grant of agricultural land to him in his capacity as ex-serviceman. Likewise, the fourth plaintiff had also purchased property in Kallubane and has constructed his own house in Kallubane and was living separately. The wife of the fourth plaintiff is working in Taluk Office and the fourth plaintiff is living with his family members.

20. It is pertinent to note that even though Plaintiffs 3 and 4 have retired from the Army in 1988 and 1989 respectively and were living separately, they have not made any claim for partition. Their mother died in 1987. The defendant has made an application for grant of Item 3 in his name in or about 1991, the Tahsildar has issued proceedings for regularisation of Item 3 in the name of the defendant by his proceeding dated 8-12-1995. The defendant has paid the T.T. fine of Rs 3489 on 28-3-1996/31-5-1996. Only thereafter, the plaintiffs appear to have filed the suit for partition. As noticed earlier, during the course of trial, Plaintiffs 1 and 2 stated that they have no claim or right in the suit scheduled property in Items 1 and 2. The conduct of the parties would also affirm that there was a division in status of the defendant and the plaintiffs insofar as Items 1 and 2 are concerned which was affirmed in the panchayat. All these material facts and evidence were ignored by the courts below and concurrent findings of courts on Items 1 and 2 are to be set aside.

21. We are conscious that power under Article 136 of the Constitution of India is to be exercised sparingly and only in furtherance of justice. But where both the courts have misappreciated the evidence and ignored the weight of evidence on record and findings suffer from perversity, this Court would certainly examine whether the findings are consistent with facts and evidence on record and interfere with the conclusion. As held in Gujarat Mineral Development Corpn. v. P.H. Brahmbhatt (1974) 3 SCC 601, (1974) 2 SCR 128, where there is gross or palpable error, the Supreme Court can also consider whether the finding is wholly inconsistent with the material on record or whether the lower court has dealt with the evidence in a perfunctory manner. In the present case, the courts below erred in ignoring the oral and documentary evidence adduced by the defendant regarding Items 1 and 2 and the findings of the courts regarding Items 1 and 2 are palpably erroneous and the same are to be reversed.

22. So far as Item 3 in S. No. 69/5C2 measuring 1.00 acre is concerned, the case of the defendant is that Saguvali Chit (patta) was granted to him and Item 3 is his self-acquired property. For Item 3, the defendant gave application for grant of patta on 8-8-1989 and again submitted another application on 28-5-1991. By the proceedings of Tahsildar dated 8-12-1995 under Rule 108 of the Karnataka Land Revenue (Amended) Rules, 1991, patta of Item 3 was granted in favour of the appellant subject to the conditions thereon and also subject to payment of T.T. fine imposed on the said land. The appellant paid T.T. fine of Rs 3489 vide chalan dated 28-3-1996 which was acknowledged by the authorities on 31-5-1996. Thereafter Saguvali Chit (patta) was granted to the appellant on 19-6-1997, long after filing of the suit. DW 6, SDA in Taluk Office has produced the records pertaining to the grant of patta for Item 3 in favour of the defendant. The defendant has brought on record evidence that villagers have raised objections for grant of patta of Item 3 to the defendant and the defendant is said to have paid Rs 1000 to the villagers. In this regard, the defendant has examined DW 4, C.B. Muthappa who is working as a Chairman of the Seva Sahkara Sangha of Kanoor Village who has produced Ext. D-33, the resolution book which contains the resolution to the effect that the sum of Rs 1000 was paid by the defendant as fine. The documents would show that Saguvali Chit (patta) for suit Item 3 was granted to the defendant on 19-6-1997 subsequent to the filing of the suit.

23. The case of the defendant is that since Saguvali Chit (patta) was granted to him, Item 3 is his self-acquired property. Rejecting the contention, the courts below recorded the findings that the defendant had not established that the amount of T.T. fine paid by him was from his earnings and no evidence was adduced to show his source of income. Placing reliance upon Thammegowda v. Siddegowda ILR 1991 KAR 4506, 1991 SCC OnLine Kar 403, the trial court held that Item 3 is the joint family property of the plaintiffs and the defendant.

24. Refuting the defendant's contention, the plaintiffs have stated that even during the lifetime of their father Narayana, he was in possession of Item 3 and the whole family contributed for the development of Item 3. In his evidence DW 2, C.D. Annaiah has stated that during his lifetime Narayana was cultivating Item 3. Likewise, Plaintiff 1 Vittala had also stated that Item 3 of the suit scheduled property was in the possession of their family during the lifetime of their father Narayana.

25. In his written statement the defendant had averred that:

“… he out of his own toil and sustained efforts encroached an area of 1.25 acres bearing S. No. 69/5C2 in the year 1962 and converted the same into wetlands and the Revenue Authorities had regularised his encroachment”.

Father Narayana died in or about 1962. After the death of Narayana, admittedly, the defendant was running the family affairs. After the death of Narayana, the family must have continued the cultivation of Item 3. The defendant cannot claim that he had individually encroached upon Item 3 even in the year 1962 and was cultivating the same in his individual capacity by his own exertion. Evidence amply shows that possession and cultivation of Item 3 was by the family and patta was granted in the name of the defendant and it is to be held that the patta was granted for the benefit of the entire family.

26. As discussed earlier, there was division of status among the brothers, the defendant and Plaintiffs 3 and 4 during the year 1995 or at the time when the defendant paid Rs 20,000 to Plaintiffs 3 and 4 for relinquishment of their interest in Items 1 and 2 or on 18-3-1995 when before panchayat resolution (Ext. D-22) was passed. As noticed earlier, the appellant had given the application for grant of patta of Item 3 in 1989 and the same was renewed in 1991 during which time there was no division of status among the defendant and Plaintiffs 3 and 4. Since the grant of Item 3 in the name of the defendant is for the benefit of the family, the trial court and the High Court rightly recorded the concurrent findings that the plaintiffs are entitled to the share in Item 3.

27. So far as Plaintiffs 1 and 2 are concerned, on receipt of summons they did not appear before the trial court. They were summoned as court witnesses and examined as CWs 1 and 2. So far as the share of Plaintiffs 1 and 2 in Item 3 is concerned, by perusal of evidence of CWs 1 and 2, it appears that they have relinquished their interest only in Items 1 and 2. As the grant of patta for Item 3 has been held to be for the benefit of the family, Plaintiffs 1 and 2 are also held entitled for a share in Item 3 and thus the plaintiffs and the defendant are entitled to 1/5th share each in Item 3. The first plaintiff PW 1 in his evidence stated that he is not interested in Items 1 and 2. So far as Item 3 is concerned, he has stated that since Item 3 of the suit scheduled property was in possession of their family during the lifetime of their father, he does not know what to ask. The second plaintiff (CW 2) in his evidence has stated that he is not interested in the share of the suit properties as the extent is very small. When specifically being asked about Item 3, CW 2 has stated that he is not interested in Item 3 also. Though in their evidence, Plaintiffs 1 and 2 have stated that they are not interested in claiming share, they have not filed anything in writing that their shares in Item 3 may be given to Plaintiffs 3 and 4 and also the defendant. In such facts and circumstances, in our view, Plaintiffs 1 and 2 are entitled to a share in Item 3. However, at the time of final decree/proceedings, it is open to Plaintiffs 1 and 2 to relinquish their share in favour of either the defendant or Plaintiffs 3 and 4.

28. In the result, the judgment of the High Court of Karnataka dated 20-3-2008 in Subraya M.N. v. Vittala M.N. 2008 SCC OnLine Kar 774 is set aside so far as suit property in Items 1 and 2 is concerned and the respondents-plaintiffs' suit for partition of Items 1 and 2 is dismissed. So far as Item 3 is concerned, the impugned judgment is modified and it is held that all the four respondent-plaintiffs and the appellant-defendant are entitled to 1/5th share each in Item 3. Accordingly, the appeal is partly allowed. No order as to costs.