SMT. ARUNDHATI v. SMT. SHANTA W/O SHIVAPP BHADRAPUR

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ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is filed by the defendants No.1 to 13, 15 and 17 to 19 against the judgment and decree passed in O.S. No. 12/2011 dated 23.06.2017 on the file of First Addl. Sr. Civil Judge, Hubballi (for short, the 'trial court'). Parties are referred to as per their ranking before the trial Court.

2. Brief facts of the case of the plaintiffs are that the propositus of the family was one Fakirappa Ramappa Dandappanavar and he died on 04.10.1973. His wife was Parvathamma and she died on 10.01.1997. They had four sons and five daughters. The four sons are, Ramappa, Basappa, Doddappa and Hemachandra. All the four sons were dead prior to filing of the suit. Names of the daughters are Ningamma (dead), Shivaganga, Chandravva (plaintiff No.1), Kasturi Bai (defendant No.14) and Shanta (plaintiff No.3). Children of Ningamma are plaintiffs No.5 to 10. Children of Shivaganga who are plaintiff Nos. 11,

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12 and 13 and the defendant No.1, Subbanna and Anantapadmanabha were sons of Shivagangawwa and both of them are no more. They do not have any legal heirs. The other three daughters of Fakeerappa are, Chandravva, Kasturi Bai and Shanta and they are plaintiff No.1, defendant No. 14 and plaintiff No.3 respectively. The other defendants are grandchildren of Fakirappa.

3. The plaintiffs further contended that suit properties were acquired by Fakirappa and after his death plaintiffs and defendants are in joint possession and enjoyment of the suit schedule property. There is no partition between the members of the family. They sought for partition. Defendants refused to effect partition. Therefore they are constrained to file the suit.

4. Contesting defendant is the defendant No.7. His contention is total denial of the case except admitting genealogy. According to him some of the family members are not included in the suit. He has also contended that plaintiffs were born prior to 1952. Therefore they have no

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right over the suit property and they are not entitled for a share. He has also contended that during the year 1947 Fakirappa and his sons executed a Toravati Patra (mortgage deed) in favour of one Mangala Vedi. During the lifetime of Ramappa, Basappa, Doddappa and Hemachandra, they were cultivating and enjoying the suit property. After their death their respective legal heirs have been in peaceful possession and enjoyment of the said lands. Plaintiffs and defendant No. 14 have never been in possession and enjoyment of the property. Suppressing these facts they have filed a suit for partition. With these reasons he prayed to dismiss the suit. The said written statement was adopted by defendants No.1 to 6 and 8 to 13.

5. Defendants No. 14, 16 and 17 have filed separate written statements. They have contended that they have a share in the suit property. Written statement of defendant No. 17 was adopted by defendants No. 18 and

19.

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6. From the rival contentions of the parties, the trial Court has framed the following issues.

ISSUES

1. Whether plaintiffs prove that the suit property is their ancestral and joint family property and they are in joint possession and enjoyment of the same along with defendants as contended?

2. Whether the plaintiffs are entitled to any share in the suit property and if so, what is their share?

3. Whether the defendants No.1 to 13 prove that the description of the suit property furnished in the plaint is not correct?

4. Whether the defendants No.1 to 3 prove that the suit property was leased out to one Mangalvedi under registered Torvatti patra in the year 1947?

5. Whether the defendants No.1 to 13 prove that this suit is bad for non-joinder of necessary parties?

6. Whether the defendants No.1 to 13 prove that there is no cause of action for the suit?

7. Whether the defendants No.1 to 13 prove that the suit is not properly valued and the Court fee paid on the plaint is incorrect?

8. Whether the plaintiffs are entitled to any relief as prayed for in the suit?

9. What order for in the suit?

7. The plaintiffs to prove their case examined one witness as PW1 and marked 21 documents as per Exs.P.1

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to P.21. Defendants examined three witnesses as DWs.1 to 3 and marked 17 documents as per Exs.D.1 to D.17.

8. The trial Court after hearing both the parties and appreciating the pleadings and evidence on record answered issue No.1 in the affirmative, issues No.3, 6 and 7 in the negative, issue Nos.4 and 5 as do not survive for consideration and decided the shares of the parties to the proceedings in issue No.2 and decreed the suit by the impugned judgment and decree dated 23.06.2017.

9. Being aggrieved by the said decree and judgment this appeal has been preferred by the defendants No.1 to 13, 15 and 17 to 19. During the pendency of this appeal, appellants filed application I.A. No. 1/2025 dated 28.01.2025 under Order 41 Rule 27 CPC along with certified copies of two documents. Defendants No. 1 and 3 to 10 filed objections to the said application.

10. Heard the arguments on main appeal as well as I.A. No. 1/2025.

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11. Learned counsel for the appellants vehemently contends that the suit was for partition and separate possession of the property. The defendants contended that plaintiffs who being the daughters and grandchildren of Fakirappa born through the daughters, have right over the property. During the year 1978 there was an oral partition by mutual understanding of the parties and accordingly revenue records are mutated. Therefore the plaintiffs have no right over the property to claim partition. This fact came to the knowledge of appellants very recently and they after obtaining the certified copy of the revenue records have produced before the Court along with I.A. No. 1/2025. In view of these circumstances, plaintiffs have no right over the property. The said documents are very much relevant and necessary to prove the contentions of the appellants. Since they have got the said documents very recently, they could not place the same on record before the trial Court.

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12. In support of his contention, learned counsel relied on the judgment in the case of Gabriel Bhaskarappa Kuri and Others vs. The United Basel Mission Church in India Trust Association and Others reported in ILR 2007 KAR 773 and submits that the application may be allowed and appellant may be permitted to lead additional evidence.

13. The learned counsel for the plaintiffs/ respondents 1 and 3 to 10 submits that the plaintiffs are the daughters and legal heirs of the deceased Fakirappa, is not in dispute. Suit schedule property was held by the Fakirappa during his lifetime and after his death it become joint and ancestral property is also not in dispute. As per the Hindu Succession Amendment Act, the daughters shall be considered as coparceners and they are also entitled for a share in the joint family property as that of a son. Therefore plaintiffs are entitled for a share in the property.

14. Advocate for respondents further submits that the contesting defendants have not contended in their written

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statement about the earlier partition. Under these circumstances, the additional documents proposed to be produced by the appellants are not relevant documents to decide the dispute between the parties. Moreover it is only a statement said to be made before the revenue authorities and it is not a registered document. On the basis of such a statement, right over an immovable property cannot be relinquished. Therefore even if those documents are taken on record, rights of the plaintiffs cannot be denied. With these reasons prayed to dismiss the appeal.

15. The learned counsel for the appellants in reply submits that there was an oral partition. Therefore registration of the document is not required and the said documents clearly reveal that there was an earlier partition and the daughters have given up their right over the property. By virtue of the said documents the plaintiffs have no right over the property.

16. The following questions emerge for determination.

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(1) Whether the learned trial judge erred in holding that suit schedule properties are ancestral and joint family properties and plaintiffs have a share in the said property?

(2) Whether the documents proposed to be produced by the appellants are just and necessary to pass effective judgment and appellants have made out proper grounds as provided under Order 41 Rule

27 CPC to allow the said documents as evidence?

17. Question No.1: More or less most of the facts of the case are not in dispute. The genealogy of the family and relationship is not in dispute. Plaintiffs are daughters and granddaughters of the deceased Fakirappa is not in dispute. They have filed a suit for partition contending that suit properties are joint family properties. As already stated above, the contesting defendants No. 1 to 6, 8 to 13, 15 and 17 to 19 have contended that daughters were born prior to 1952, i.e., prior to coming into force of Hindu

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Succession Act, 1956 and hence they are not entitled for any share in the suit property.

18. The suit was filed during the year 2011, i.e., after coming into force of Hindu Succession Amendment Act, 2005 and as on that date the law prevailing law is that the daughters shall be considered as coparceners and entitled for a share as that of a son, in ancestral joint family property. During pendency of the litigation the Hon'ble Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others reported in AIR 2020 SC 3137 held that the amended Act has retrospective effect that it is enforceable from the date of coming into force of Hindu Succession Act, 1956. In view of the said amendment as well as interpretation of Section 6 of the Hindu Succession Amendment Act, 2005 by the Hon'ble Supreme Court, the only contention of the defendants No.1 to 13 is not tenable. Considering the said contention the learned judge decreed the suit. There is no illegality in the said

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finding. In view of the said reasons the question no.1 is answered in the negative.

19. Question No. 2: The appellants filed I.A. No. 1/2025 under order 41 Rule 27 CPC. For the sake of appreciation it is necessary to quote provision of Order 41 Rule 27 CPC which reads as under:

"27. Production of Additional Evidence in Appellate Court.

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

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(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

20. Appellants produced document, i.e., certified copies of the revenue records in respect of the suit property and even the so called statement recorded by the revenue authorities for deleting names of daughters from the property extract. There is a reference regarding the relinquishment of their right over the property in favour of their brothers. Admittedly the said relinquishment is not a registered document.

21. It is worth to note that in the entire written statement filed by defendant No.7, nowhere a case was made out regarding the oral partition between the parties of the year 1978 and also the alleged statements given by daughters dated 27.02.1980 before the revenue authorities. In paragraph No. 6 of the affidavit it is referred that the said documents were kept by one of the uncles who died long back and his wife handed over the

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said documents to the defendants and the defendants handed over the same to the Advocate.

22. It is worth to note that documents are certified copies obtained in the month of January, 2025. Moreover they are certified copies of the public documents. Had the defendants diligent in conducting the litigation, they could have obtained the same from the revenue authorities during the pendency of the suit. The said suit was filed during the year 2011. As noted in the judgment sheet, recording of the evidence was commenced from 17.02.2014. The suit was disposed of on 21.06.2017. Over a period of six years at no point of time the contesting defendants tried to secure the documents or look into the said documents. Therefore the contention that the said documents were available with the aunt of the defendants and they got it recently is not believable. Moreover it indicates that they were not diligent in prosecuting the case. Under these circumstances, they cannot be permitted to lead additional evidence.

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23. As already stated above, the said question of earlier partition of the year 1978 was not at all pleaded in the written statement and even the statement said to be recorded of the year 1980 was not at all disclosed in the pleadings and at a belated stage they cannot make out a new case at appellate stage for first time which was not a case before the trial Court. Production of evidence without pleading of such fact is of no use and it cannot be considered. Hence the said additional evidence cannot be considered for deciding the issues. Therefore it will not enable the Court to pass an effective judgment.

24. In the judgment reported in ILR 2007 KAR 773 referred supra, the procedure to be followed under Order

41 Rule 27 CPC has been prescribed. It is a guideline to permitting a party to lead additional evidence at appellate stage and exercising power under Order 41 Rule 27 CPC. In view of the above said discussion, the law laid down in the above said judgment will not come to the rescue of the appellants.

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25. For the reasons discussed above, the above said application deserves to be rejected. Accordingly, question no. 2 is answered in the negative.

For the above discussion this Court proceed to pass the following order:

ORDER

Appeal is dismissed. Judgment and decree passed in O.S. No. 12/2011 dated 23.06.2017 on the file of First Addl. Sr. Civil Judge, Hubballi, is confirmed.

I.A. No. 1/2025 filed under Order 41 Rule 27 CPC is dismissed.

Send back the original records to the trial Court along with a copy of this judgment.

Draw decree accordingly.

Sd/-

(UMESH M ADIGA)

JUDGE

BVV /CT-AN List No.: 1 Sl No.: 10