| SooperKanoon Citation | sooperkanoon.com/1192563 |
| Court | Karnataka High Court |
| Decided On | May-03-2017 |
| Case Number | R.F.A Nos. 1015, 770 of 2008, 970 of 2009 & RFA.Crob. No. 13 of 2009, 8 of 2010 |
| Judge | Aravind Kumar |
| Appellant | A.C. Nagaveni and Others |
| Respondent | Akkamma and Others |
(Prayer: This Appeal is filed U/S 96 of the CPC against the Judgment and Decree Dated 10.3.08 passed in O.S. No.6906/97 on the file of the XXII Addl. City Civil Judge, Bangalore, partly decreeing the suit for partition and separate possession.
This Appeal is filed U/S 96 of CPC against the Judgment and Decree Dated 10.03.2008 passed in OS.No.6906/1997 on the file of the XXII Addl. City Civil Judge, Bangalore, partly decreeing the suit for partition of Plaintiffs 9/32RD share and separate possession in Items No.1 to 11 of Plaint 'A' Schedule and 'B' Schedule Property and dismissing the suit in respect of Item No.12 and 13 of 'A' Schedule and 'C' Schedule Property.
This Appeal is filed U/S 96 CPC against the Judgment and Decree Dated 10.03.2008 passed in OS.No.6906/1997 on the file of the XXII Addl. City Civil Judge, Bangalore, partly decreeing the suit for partition and separate possession, mesne profit and dismissing the suit filed in respect of properties mentioned in Item No's 2 and 3 of Plaint 'A' Schedule and 'C' Schedule.
This RFA Cross-Objection is filed in RFA770/2008 U/O 41 R 22 CPC against the Judgment and Decree Dated: 10.3.2008 passed in OS.No. 6906/1997 on the file of the XXII Addl.City Civil Judge, Bangalore, partly decreeing the suit for partition, separate possession and mesne profits and the Cross-Objector herein prays to set aside the finding of the Trial Court holding that Items No.12 and 13 of suit as self acquired properties of the Defendant No.2 and to modify the Quantum of Shares, alloted by the Trial Court and Grant Equal Shares along with Respondent Nos. 1 and 2 in accordance with Law.
This RFA.Crob is filed U/O XLI R-22 of CPC in RFA No.1015/2008 against the Judgment and Decree Dated 10.03.2008 passed in O.S.6906/1997 on the file of the XXII Addl. City Civil Judge, Bangalore, partly decreeing the suit for partition and Separate Possession.
These Appeals and Cross Objections being heard and reserved, coming for pronouncement of Judgment this day, THE Court delivered the Following:)
1. These appeals and cross objections have been filed questioning the correctness and legality of the judgment and decree passed by XXII Addl.City Civil Judge, Bangalore on 10.03.2009 in O.S.NO.6906/1997 whereunder suit filed by the plaintiff for partition and separate possession came to be decreed by granting plaintiff 9/32nd share in items -1 to 11 of plaint 'A' schedule properties and the properties described in plaint 'B' schedule. Suit filed in respect of item No.12 and 13 of plaint 'A' schedule and properties described in plaint 'C' schedule has been dismissed. Further decree has been passed for conducting enquiry into mesne profits. It is also decreed that plaintiff would be entitled for maintenance from defendants-1 and 2 till final decree and amounts so received was ordered to be adjusted from mesne profits to be determined in Final Decree Proceedings.
2. RFA No.770/2008 is preferred by defendants-1, 1(a) to 1(c) challenging the judgment and decree passed in O.S.No.6906/1997 decreeing the suit. RFA No.970/2009 is filed by defendants-3 and 7 challenging same judgment and decree insofar as dismissing the suit in respect of item Nos.12 and 13 of plaint 'A' schedule properties and movable properties described in plaint 'C' schedule. Cross objections No.13/2009 (in RFA No.770/2008) is preferred by defendants-3 and 7 questioning the allotment of quantum of shares and the findings recorded on item No.12 and 13 as same being the self acquired properties of second defendant. RFA NO.1015/2008 is preferred by defendants-2, 2(a) to 2(d) challenging same judgment and decree whereunder suit came to be decreed in respect of item Nos.1 to 11 of schedule 'A' properties and 'B' schedule properties in entirety. Cross Appeal No.8/2010 is preferred by third defendant in RFA No.1015/2008 challenging the dismissal of the suit in respect of item No.12 and 13 of schedule 'A' property.
3. For the purposes of convenience and immediate reference, the appeals/cross objections- appeals and the rank of the parties who have filed the same are tabulated herein below:
| Sl. No. | Appeal No. | Cross objections or cross appeal No. in RFA No. | Preferred by - rank in trial Court |
| 1 | RFA No. 770/2008 | - | Defendants-1, 1(a), 1(b) and 1(c) |
| 2. | RFA CROB.13/2009 in RFA No.770/2008 | Defendant Nos.3 and 7 | |
| 3. | RFA 970/2009 | - | Defendant Nos.3 and 7 |
| 4. | RFA 1015/2008 | - | Defendants Nos.2,2(a) to 2(d) |
| 5. | - | RFA CROSS APPEAL No.08/2010 in RFA No.1015/2008 | Defendant Nos.3 |
4. For purposes of convenience, parties are referred to as per their rank in the trial Court.
Suit in question i.e., O.S.No.6906/1997 came to be filed by Smt.Akkamma against defendants for partition and separate possession claiming 3/8th share in the suit schedule properties, which are both movable and immovable properties as described in Schedule to the plaint as 'A', 'B' and 'C' schedule properties. Plaintiff had sought for partition in respect of 13 properties and item No.1 in 'A' schedule came to be deleted as per order dated 06.03.2000 passed on I.A.No.VII. Though in plaint 'B' schedule properties, 8 items were described thereunder and partition was sought for. Subsequently, plaintiff has deleted item Nos.5 to 8 as per order dated 06.03.2000 passed on I.A.No.VIII.
It was specifically contended by the plaintiff that she and defendants are the members of Hindu Undivided Joint Family and as per the genealogical tree filed along with the plaint, relationship of the parties have been described therein and it reads as under:
CHART
It is the case of the plaintiff that suit schedule properties are the ancestral and joint family properties of plaintiff and defendants and that they are in joint possession. Plaintiff contended that there was a partition that took place in the year 1962 between the original propositus late Sri Chikkabandeppa and his brothers and each one of them got their respective shares and in token thereof, it was acknowledged by them in a written palupatti and under the said palupatti, the husband of the plaintiff came to be allotted plaint schedule properties. It was also contended by the plaintiff that on such partition taking place in the year 1962 Sri Govindaraju got himself separated from joint family and had made several improvements to the suit schedule properties. It was specifically contended that item No.11 of plaint 'A' schedule was purchased by her husband during his life time and he died intestate on 30.12.1976.
Plaintiff further contended that on the demise of her husband, her eldest son late Sri B.G.Jagadish was managing the affairs of joint family as its manager and another son Sri B.G.Ramesh was assisting him. She has further pleaded that a private layout came to be formed in the suit schedule properties and some constructions have also been put up investing the joint family funds and so also the improvements effected on the suit schedule properties was out of the joint family funds. She has further contended that item No.12 and 13 of plaint 'A' schedule properties were recently purchased out of joint family funds in the name of second defendant.
Plaintiff has also contended that her sons were not revealing any particulars about the management and affairs of joint family either to her or other female members of the joint family and on certain occasions, they used to obtain her signatures or Left Thumb Impressions on blank papers and also of other female members without disclosing the real purpose. She has also contended that she is an innocent old woman without any worldly knowledge and had great faith and affection in her sons and as such, she was not questioning her sons the purpose for which they were obtaining her signatures. She has also contended that she was affixing her signature in Kannada only and she is not literate. She further pleaded that she is unable to write and understand the reading. She has also contended that her innocence has been misused by her sons and her daughters-in-law.
She has further pleaded that her sons Sriyuths B.G.Jagadish and B.G.Ramesh died on 12.12.1994 and 25.06.1991 respectively and thereafter defendants-1 and 2 namely, her daughters-in-law started dominating in all the affairs of joint family and took hold of joint family affairs and the funds and practically neglected plaintiff and other members of the family and they were also being ill-treated by them. She has also contended that she had suffered lot of harassment at the hands of defendants-1 and 2 and after it became unbearable, she putforth her claim for partition of joint family properties two years prior to the filing of the suit and several attempts made by the well wishers of the family and to arrive at an amicable settlement did not yield any result and as such, she got issued a legal notice to defendants-1 and 2 requesting them to agree for amicable settlement for partition of joint family properties and on their refusal by reply notices, she has instituted the suit in question. She has also contended that there was no partition in the joint family, the one pleaded by defendants-1 and 2 in their reply notices are false, bogus and raised with an intention to knock off the joint family properties. Hence, she instituted the suit in question claiming 3/8th share in the suit schedule properties.
5. Defendant No.1 on her behalf and on behalf of her children - 1(a) to 1(c) has filed written statement. Likewise, defendant No.2 on her behalf and on behalf of her children -2(a) to 2(d) has also filed the written statement independently.
6. In the written statement filed by defendant No.1, 1(a) to 1(c), it is specifically contended that plaintiff is residing with defendant Nos-3 to 7 and they also denied the existence of undivided joint family. They have specifically contended that plaintiff and defendants have been residing separately since last two decades. Plaintiff has also contended that defendants-3 to 7 were married long back and are living in their respective marital homes. It is also their contention that plaintiff separated from the family of her sons during 1981 itself and has been residing separately. Hence, they contended that there is severance of joint family status.
They have also pleaded in their written statement that suit schedule properties are neither ancestral nor joint family properties. However, they admit that there was a partition in the year 1962 between late Sri R Govindaraju and his brothers and certain properties as described in the plaint schedule had fallen to the share of Sri Govindaraju but not all the suit schedule properties. Plea regarding Sri Govindraju having effected improvements over suit schedule properties came to be denied and so also the purchase of item No.11 of plaint 'A' schedule by Sri Govindaraju. It was contended that first defendant's husband late Sri B G Jagadish on the demise of Sri Govindaraju took up the responsibility of performing the marriage of defendants- 3 to 7 and they were given jewellery and cash at the time of marriage. However, Sri B G Jagadish being manager of the joint family came to be denied. They also denied that joint family funds were invested to form the private layouts or any improvements. They specifically denied that neither Sri B G Jagadish nor Sri B G Ramesh having obtained signatures or Left Thumb Impressions of plaintiff and defendants-3 to 7 without disclosing the purpose.
Defendants-1, 1(a) to 1(c) have contended that plaintiff is a worldly wise lady and has been transacting on her own and she is a tool in the hands of her daughters and sons-in-law. They have also contended that on account of greed of defendants-3 to 7 and their husbands, the present suit has been filed. They have also contended that when plaintiff did not reside with defendants-3 to 7 subsequent to 1981, question of plaintiff suffering any harassment at the hands of defendants did not arise and the very fact that plaintiff and defendants-3 to 7 have got issued legal notice jointly itself indicates that there is active collusion between them. They also contend that plaintiff and defendants-3 to 7 had knowledge about severance of joint family during 1981 itself when partition took place and separate shares were allotted between plaintiff and defendants and the partition so effected was subsequently recorded in the form of memorandum/palupatti on 20.12.1987 which is duly signed by the plaintiff, her sons and also defendants-3 to 7. They have also pleaded that said partition was duly acted upon and defendants-3 to 7 being beneficiaries cannot contend that it is void ab initio. They have further contended that long after the death of her sons, it is not open to the plaintiff to contend that suit schedule properties belong to joint family particularly when shares have been taken by plaintiff as well as defendants-3 to 7 and they are estopped from taking such contention.
They have also pleaded that they are in possession and occupation of the property bearing Municiipal No.652/7, Bandappa street, Yeshwantpur, Bangalore which came to be reconstructed by late Sri B G Jagadish since it was in dilapidated condition. They have also further contended that late Sri B G Jagadish had formed 28 sites in land bearing Sy.No.39 and 24 of Jalahalli village and have sold them to various persons as morefully indicated in paragraph 25 of written statement, who have constructed buildings and are in possession and enjoyment of the same. The allegation of fraud, coercion and misrepresentation made in the plaint is denied as bald and not supported by material and better particulars. They also contend that interrogatories served by defendants in that regard is also unanswered and the very maintainability of the suit is questioned on the ground that without seeking for re- opening of the 1981 partition, same is not maintainable. On account of purchasers having not been made as parties, it is contended that suit is bad for non-joinder of necessary parties. On these grounds, they have sought for dismissal of the suit.
7. Though second defendant on her behalf and on behalf of defendant Nos.2(a) to 2(d), written statement was filed independently, it is almost identical and similar to the pleas advanced by first defendant. It is specifically contended that plaintiff is a signatory to the palupatti of the year 1981 and husbands of defendants-1 and 2 and defendants-3 to 7 are also signatories and all the properties described in schedule-'A' to 'H' in the said palupatti have been allotted to the respective shares of Sriyuths B G Jagadish, B.G.Ramesh, plaintiff and defendants-3 to 7 and they have been put in possession of their respective shares. Thus, they contended that there is total severance of status. It is specifically pleaded that plaintiff herself has sold one item of the property in favour of one Sri Keshava Babu under registered sale deed dated 22.09.1997 and fourth defendant has sold the property bearing No.70, in Sy.No.24 of Jalahalli village under registered sale deed dated 25.02.1991, which would indicate that the partition effected in 1981 was acted upon.
8. A specific plea has been raised that plaintiff has not signed the plaint in the instant case but some one else has forged her signature and in support of her contention in that regard, at paragraph 23, it is averred that plaintiff is in the habit of affixing her Left Thumb Impression and not signature which is also evident from the plaint filed by her earlier i.e., in O.S.NO.4554/1988 against the Corporation of City of Bangalore seeking relief of declaration and injunction in respect of the property bearing No.43 which came to be dismissed. It is also contended that item No.12 and 13 of plaint 'A' schedule properties are self acquired properties of second defendant. On these grounds, they have sought for dismissal of the suit.
9. Defendants-3 and 6 have filed separate written statement admitting the plaint averments and also contending that they are entitled for 1/8th share in the suit schedule properties. However, no separate Court fee is paid in respect of their counter claim.
10. Plaintiff has filed a rejoinder to the written statement filed by defendants-1 and 2 by contending that alleged deed of partition dated 20.12.1981 is set up by the defendants, is a concocted document and never acted upon. It is also contended that question of reopening of partition does not arise, when there was no partition earlier. It is also denied by the plaintiff that she has not affixed her signature to the plaint, however, she has admitted that she was affixing her Left Thumb Impressions earlier and later on she has learnt to affix her signature in Kannada language. Reiterating her plea raised in the plaint, she sought for decreeing the suit.
11. On the basis of pleadings of the parties, trial Court has framed the following issues:
1) Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants as alleged in the plaint?
2) Whether defendant Nos.1 and 2 prove that there was a partition among the members of the family in the year 1981 itself, as such the suit filed by the plaintiff for partition is not maintainable as contended in that written statement?
3) Whether defendant Nos.1 and 2 prove that the suit is bad for non-joinder of necessary parties as contended in para 31 of their written statement?
4) Whether the second defendant proves that the suit schedule items 12 and 13 of the schedule are her self acquired properties as contended in para 12 of the written statement?
5) Whether the plaintiff is entitled 3/8th share in the suit schedule properties as claimed in the plaint?
6) Whether the 3rd and 6th defendants prove that they are entitled to 1/8th share each in the suit schedule properties?
7) What order? What decree?
Additional Issue
Whether the plaintiff proves that the Court fee paid is sufficient?
12. On behalf of the plaintiff, Sri Atmaram who is brother of plaintiff's husband was examined as P.W.1. Two witnesses were examined on behalf of plaintiff namely, P.Ws.2 and 3. In all, 36 documents were produced and they were got marked as Exs.P-1 to P-36. on behalf of defendants, defendant No.1 and 2 were examined as D.Ws.1 and 2 respectively and one witness was examined as D.W.3 who is the brother of second defendant and in all, 43 documents were produced and they were got marked as Exs.D-1 to D-43. The proceedings of earlier suits were summoned and they were marked as Exs.C-1 to C-5.
FINDINGS RECORDED BY THE TRIAL COURT:
13. The trial Court after considering the pleadings of the parties and on appreciation of both oral and documentary evidence, has taken up issue Nos.1 and 4 and adjudicated the same together and has answered issue No.1 partly in the affirmative by concluding that item Nos.1 to 11 of plaint 'A' schedule and property described in 'B' schedule are the ancestral and joint family properties. Issue No.4 was answered in the affirmative by concluding that second defendant has proved that item Nos.12 and 13 are her self acquired properties. While adjudicating issue Nos.1 and 4, trial Court has opined that recording of any finding on these two issues, it has to necessarily record a final finding on issue No.2. Hence, adjudicating issue No.2, trial Court held that defendants-1 and 2 have failed to prove the partition in the joint family having taken place in the year 1980 as propounded by them. Issue No. 3 which relates to the plea raised by defendants-1 and 2 that suit was bad for non-joinder of proper or necessary parties came to be negatived on the ground that defendants -1 and 2 had not examined the purchasers of the properties allotted to the share of Sri B G Jagadish and also on the ground that purchasers of the joint family properties are not necessary parties in a partition suit and their right if any is only against their sellers/vendors. Issue Nos.5 and 6 has been held in favour of the plaintiff and defendants-3 to 7 (partially) and has allotted shares in their favour as indicated in the judgment and decree dated 10.03.2008. Additional issue has been answered in favour of the plaintiff by concluding that Court fee paid is sufficient.
14. Trial Court while examining the plea of the defendants that P.A.Holder of plaintiff was not competent to speak on her behalf has held at paragraph 26 of its judgment that P.A.Holder would be at liberty and competent to give evidence in respect of the acts done by him pursuant to authority given and he cannot depose in respect of matters which are exclusively within the personal knowledge of the executant and in respect of acts/events taking place prior to the execution of the power of attorney. In conclusion, it came to be held that evidence tendered by a P.A.Holder will have to be examined as to whether in the facts and circumstances of each case, it would be essential or not. Incidentally, trial Court has also examined as to whether non-examination of plaintiff was fatal to plaintiff's claim and having noticed that burden is upon defendants-1 and 2 to prove that there was a partition of joint family properties in the year 1981 as contended by them and on account of General Power of Attorney produced by P.W.1 and marked in evidence of P.W.1 on 27.11.2004 having not been objected to and order permitting production of Power of Attorney having not been challenged, defendants were estopped from challenging the same.
15. It also came to be held by the trial Court that documents produced by the defendants namely, Exs.D-13 to 22 in general and Ex.D-21 in particular would indicate the name of Sri Govindaraju, s/o Sri Chikkabandeppa who is none other than the husband of plaintiff and as such, item Nos.11 and 12 of suit schedule properties are the joint family properties and thereby there was no necessity for the plaintiff herself to enter the witness box. Likewise, it has been held by trial Court that item Nos.1 to 10 of Schedule 'A' properties having been allotted to the share of Sri Govindaraju had not been denied by defendants - 1, 1(a) to (c) and 2, 2(a) to (d), but on the other hand, they have admitted said fact and as such, they have been held by the trial Court as joint family properties.
16. Trial Court while examining issue No.2 has held that deed of partition/palupatti dated 20.12.1981 marked by Ex.D-12 propounded by defendants-1,1(a) to (c) and 2, 2(a) to (d) is hit by Section 17(1)(b) of the Registration Act and it was compulsorily registrable document, since under the said document the properties came to be divided and possession delivered under the said document. Finding has also been recorded by the trial Court that recitals found in the said document does not indicate that it is a mere record of a previously completed partition effected between parties and as such, it was held that it was inadmissible in evidence. While examining the said document for the purposes of ascertaining as to whether there was any material to find out as to whether disruption was there in the joint family as pleaded by the defendants -1, 1(a) to (c) and 2,2(a) to (d) which resulted in severance of status, it came to be held that no person who have witnessed the execution of said document has been examined and D.W.1 and D.W.2 are not parties to this document and they had no personal knowledge. Hence, on account of non-examination of the available witnesses who had affixed their signature to Ex.D-12, an adverse inference came to be drawn against defendants-1,1(a) to (c) and 2, 2(a) to (d). Trial Court also noticed that only 'A' schedule of the deed was produced and the remaining Schedules which finds a place in said document had not been produced and held that production of other Schedules to the document could have reinforced the contention of defendants-1, 1(a) to (c) and 2, 2(a) to (d) and on account of non- production of entire document, same cannot be accepted. On account of non-examination of the parties to Ex.D-3 and D-4 namely, sale deeds under which plaintiff and fourth defendant had sold the properties received by them as their share, it came to be held that mere production of a document would not suffice to hold said document as duly proved.
17. Trial Court has also taken note of the report of the fingerprint expert Smt.C.N.Jayadevi who had compared the admitted Left Thumb Impression of Smt.Akkamma - plaintiff with the Left Thumb Impression found on Ex.D-12, whereunder she has opined that Left Thumb Impressions found in said document was not clear to find out the identity of impressions. Hence, trial Court has held that defendants-1 and 2 have not proved that Left Thumb Impression found on Ex.D-12 is the Left Thumb Impression of plaintiff. In conclusion, trial Court held that defendants-1 and 2 had not taken any steps to prove that the signature of Smt.Akkamma found in the plaint is forged one. Hence, issue No.2 was answered in the negative i.e., against defendants-1,1(a) to (c) and 2, 2(a) to (d). On these grounds, trial Court decreed the suit partly as noticed herein above which has been called in question in these appeals.
CONTENTIONS OF THE LEARNED ADVOCATE APPEARING FOR APPELLANTS (DEFENDANTS-1, 1(a) TO 1(c), 2, 2(a) TO 2(d))
18. It is the contention of Sri. Ajith A.Shetty, learned counsel appearing for appellant that suit filed by plaintiff through Power of Attorney holder is not maintainable in the light of there being a bar under Order 3 Rule 2 CPC. He contends that specific defense set up by defendant Nos.1 and 2 in the written statement was to the effect that there was a severance of status of the joint family after the death of Sri.B.Govinda Raju i.e., in the year 1980 and thereafter parties entered into a transaction by executing a palupatti amongst themselves, which came to be marked as Exhibit-D12 before Trial Court and it has been specifically contended by defendant Nos. 1 and 2 that plaintiff was signatory to the said document and she alone who was entitled to either admit or deny the execution of said document. He further contends that the Power of Attorney holder, who has been examined as P.W.1 on behalf of plaintiff was not aware of the transaction that took place prior to execution of Power of Attorney in his favour and he has admitted in his evidence that he is ignorant of the past transactions and as such his evidence is at variance with the pleadings and his evidence is of no relevance. He contends that when plaintiff has stated that she has not executed any document, it was incumbent upon her to enter the witness box but on the contrary P.W.1 admits in his cross-examination dated 14.03.2006 at paragraph 21 to the effect that he is not able to identify the Left Thumb Impression of Smt.Akkamma (plaintiff) in Exhibit-D12. He also draws the attention of the Court to paragraph-5 of the examination-in-chief of PW1, whereunder it is admitted by him that Smt.Akkamma had affixed her Left Thumb Impressions on some papers (though it is stated blank papers) and as such it was incumbent upon her to enter the witness box and in this background the evidence of PW1 cannot be eschewed.
He further draws the attention of Court to the cross-examination dated 13.04.2005 of P.W.1, whereunder he has admitted that daughters of Smt.Akkamma might have put their signatures to Exhibit-D12 and contends that daughters have not entered the witness box to deny their signatures found in Ex.D-12. In support of his submission that Smt.Akkamma alone could have spoken about Exhibit- D12 as not having been executed by her, he relies upon the judgment of the Hon'ble Apex Court in the case of JANKI VASHDEO BHOJWANI and ANOTHER vs INDUSTRIAL BANK LTD. and OTHERS reported in AIR 2005 SC 439.
Sri. Ajith A. Shetty, learned counsel appearing for appellants would further elaborate his submission by contending that findings recorded by Trial Court with regard to Exhibit-D12 are not consistent and particularly having held Exhibit-D12 as admissible, Trial Court could not have examined said document further. He submits that Exhibit-D12 ought to have been considered in the light of Exhibits-D3 and D4 which are the sale deeds executed by plaintiff and fourth defendant, which would reflect that they have acted upon Ex.D-12 and there was severance of status of joint family and as such, Exhibit-D12 could not have been looked into or considered without examining Exhibits-D3 and D4. He further contends that admittedly Exhibit-D3 is a sale deed dated 25.02.1981 executed by defendant No.4 Smt.B.G.Leela, in favour of one Sri.Palu Durai and said defendant No.4 was duly served in the suit and she has neither filed her written statement denying the averments made in the plaint at paragraph - 28 of the written statement (filed by defendant No.1) and she has not entered the witness box to deny the execution of sale deed Exhibit-D3 or her signature found in Ex.D-12. On the other hand he contends that recital found in the said document Exhibit-D3 would clearly go to show that there was severance of status of the joint family and for selling the property she has stated that she acquired title to the said property by an unregistered partition deed executed between the daughters and sons of late Sri.Govinda Raju before the Panchayatdars on 20.12.1981 and there being an admission in the registered document, there was nothing further for the defendants-1 and 2 to prove Ex.D-12 particularly when the defendant No.4, who is the executant of Exhibit-D3 having not entered the witness box. In this background he relies upon the judgment of the Hon'ble Apex Court in the case of KALE AND OTHERS vs DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS reported in AIR 1976 SC 807.
19. Sri P.H.Ramalingam, learned Advocate appearing for appellants in RFA No.1015/2008 namely, defendants-2 and 2(a) to 2(d) has contended that existence of the document - Ex.D-12 is admitted by the plaintiff in the rejoinder filed to the written statement of defendants-1 and 2 by contending that it was never acted upon. He would also submit that Smt.Akkamma in the earlier proceedings has affixed her Left Thumb Impressions only as per Ex.C-4, D-4 and D-7 and also in the vakalathnama filed in O.S.No.4554/1998 and none of these documents have been considered by trial Court. He would elaborate his submission by contending that as on the date of filing of the suit in question, there was no existence of joint family. He would also submit that P.W.1 in his cross examination dated 03.12.2004 has admitted regarding palupattis entered into in the family earlier also. He draws the attention of the Court to paragraph 5 of the plaint in this regard. He would draw the attention of the Court to admission of P.W.2 in his cross examination dated 10.12.2004 at paragraph 11 whereunder he admits that Smt.Akkamma was affixing her Left Thumb Impression. He would also contend that P.W.1 has virtually admitted the existence of Ex.D- 12 in his cross examination dated 13.04.2005 wherein P.W.1 has not only identified the signatures of defendants-3 to 5. He would also contend that P.W.1 has admitted that whenever there was partition in the joint family, said document was not registered as per the cross examination dated 11.07.2005.
He would draw the attention of the Court to the order passed by this Court in W.P.No.9242 and 9388/2005 which came to be dismissed on 01.03.2005 which writ petitions had been filed challenging the order of the trial Court dated 09.02.2005 dismissing I.A.No.17 and 18 filed for summoning Smt.Akkamma and this Court having reserved liberty to the appellants i.e., defendants-1 and 2 to challenge the same. Hence, he prays for drawing an adverse inference against Smt.Akkamma for not having entered the witness box.
CONTENTIONS OF LEARNED ADVOCATE APPEARING FOR DEFENDANTS-3 and 7 IN RFA NO.970/2009, CROSS OBJECTOR IN CROSS APPEAL NO.8/2010 AND CROSS OBJECTORS IN CROSS OBJECTIONS 13/2009.
20. Sri Chandranna, learned counsel appearing for appellant in R.F.A.No.970/2009 and cross-objectors in cross-objections No.8/2010 and 13/2009 would support the judgment and decree passed by Trial Court. Insofar as it has decreed the suit and contends that insofar as dismissal of the suit relating to item Nos.12 and 13 of the schedule 'A' property is erroneous and liable to be set aside and suit is required to be decreed in toto i.e., as prayed for.
Elaborating his submission in support of suit being decreed in its entirety namely in respect of item Nos.12 and 13 of schedule 'A' property, he contends that 2nd defendant has not produced any document to show that she has acquired these properties out of her own income or funds generated for purchase of said property is self earned income. He also contends that 2nd defendant has not proved her defence set up that she purchased the said items of property from out of funds provided by her mother's house towards "Arishina Kunkuma" and he draws the attention of Court to the evidence of DW3, wherein he has admitted that neither in his community nor caste there is no such tradition of giving "Arishina Kunkuma" to a widow and as on the date of purchasing the said property she being a widow could not have received the said amount as contended from her mother's side and the evidence in this regard is not trustworthy and cannot be believed. He submits that on the other hand, it is undisputed fact that the joint family possessed various properties, which was in effective, particularly the said defendant and she was getting sufficient income by way of rents or in other words the property possessed by her was by generating funds which enabled her to purchase these two items of the property and as such in the absence of any positive evidence placed by 2nd defendant to establish the fact that she had separate income and as such she was entitled to purchase or capable of purchasing these two properties. The one and only inference that can be drawn is that she has purchased the said items from out joint family funds and as such he seeks cross- objections and as also the appeal be allowed.
He would further contend that during the pendency of appeal, original plaintiff Smt.Akkamma expired and as such the shares allotted by Trial Court requires to be reallotted particularly in the background of the said Smt.Akkamma having executed a Will in favour of defendant Nos.3 and 7 and as such the appeal in R.F.A.No.970/2009 has been filed. At this juncture itself he also brings to the notice of this Court about an application in I.A.No.1/2012 filed on 02.07.2012 under Section 151 CPC read with Section 8 of the Hindu Succession Act, 2008 by contending that the parties in pending appeals have equal rights of shares in the schedule properties and as such they are entitled to equal shares in accordance with amended Act 39 of 2005 as provided under Section 6 of the Hindu Succession Act and as such reallotment of shares to be made accordingly. It is the further contention of Sri.Reddeppa that insofar as issue No.1 is concerned the burden was rightly cast by Trial Court on the plaintiff and it has been answered in the affirmative and as such the presumption is that the family is a joint family unless rebutted and proved by cogent evidence, the fact to be otherwise. He would contend that issue No.2 relates to the plea set up by defendant with regard to partition having been taken place in the year 1999 itself and the burden of the onus was on the defendants and mere non-examination of the plaintiff would not be fatal, particularly in the background of reply / rejoinder filed to the written statement of 2nd defendant denying the very execution of the document purported to be a partition deed or palupatti. He also draws the attention of the Court to paragraph 14 and 15 of the plaint whereunder plaintiff has traversed the reply notices sent by defendant Nos.1 and 2 on 08.09.1996 and plaintiff has specifically denied about the execution of any alleged partition deed or palupatti and contended that it is fabrication and bogus partition void-ab-initio. He submits that defendants have not discharged their burden in proving issue No.2 and as such the onus shifting on the plaintiff does not arise at all. He states that on account of non-examination of plaintiff for the purposes of denying the Left Thumb Impression found on the alleged partition deed Exhibit-D12 would not be fatal to plaintiff's claim nor an adverse inference can be drawn against plaintiff. It is contended that even assuming that plaintiff had entered the witness box, she could not have identified the Left Thumb Impression found in Exhibit-D12, since no person can identify his or her own Left Thumb Impression found in a document when confronted in evidence.
He submits that the right of the shareholders for their shares in the suit schedule property is not disputed or questioned by defendant Nos.1 and 2 and right of declaration is not raised or questioned. He submits that joint family status continued upto 20.12.1981, even according to the defendants and as such the continuation of the status of joint family is presumed unless rebuttal evidence is tendered and he states in the instant case no such rebuttal evidence, whatsoever, has been tendered by the defendant Nos.1 and 2 to construe the same as having been rebutted. He submits that under Section 17(1)(b) of the Registration Act any document purporting to create or extinguish a right in any immovable property, a value of Rs.100/- and upwards, is compulsorily registerable and the document in question namely, the partition deed dated 20.12.1981 produced and marked as Exhibit - D12, would itself clearly go to indicate that under the said document properties are distributed and possession delivered and as such the rights are created for the first time under the said document and as such the document not being registered was hit by Section 17 of the Indian Registration Act, 1908. He would also elaborate his submission to contending that the partition deed and a deed for collateral purposes which is envisaged under provisions to Section 49 are different and distinct and in the instant case it is not the plea put forward by he defendant that document Exhibit- D12 came into existence for collateral purposes and as such it cannot be relied upon, which exercise was rightly not done by the Trial Court. He would also submit that the judgments relied upon by the learned counsel appearing for the appellants, there is no reference to the partition deed can be admitted in evidence even though not registered and as such a decision would not be of any assistance to the appellants - defendant Nos.1 and 2. He would submit that Exhibits - P27 to P33 are the sale deeds executed by deceased Ramesh and Jagadeesh, sons of the original plaintiff and perusal of the same would indicate that they have stated the partition having taken place much prior to the date of 20.12.1981 and in each of the document different dates have been given and this evidence can be analyzed, scrutinized and discussed by the Trial Court to reject the claim of the defendants and said finding of Trial Court is based on true and proper appreciation of evidence, which does not call for interference at the hands of the Appellate Court. He would also submit that mere production and marking of Exhibits - D3 and D4 would not prove the contents or execution of these documents and the Trial Court having considered this fact has refused to accept the plea put forward by the defendant Nos.1 and 2 and as such he seeks for affirmation of the said finding.
Insofar as the plea raised by defendant with regard to evidence tendered by the power of attorney holder on behalf of plaintiff is concerned, he contends that at the time of examining the power of attorney holder the said power of attorney can be produced and marked as Exhibit-P1, the same was not objected to by the defendants and at this length of time or immediately thereafter, they are estopped from questioning the said power of attorney. In support of this submission he relies upon the judgment in the case of R.V.E.VENKATCHALA GOUNDER VS. ARULMIGU VISWESARASWAMI and V.P. TEMPLE AND ANR. reported in 2003 SAR (Civil) 1929. In the very same judgment he draws the attention of the Court to the head note (B) and (C) to buttress his arguments with regard to burden of proof and revenue entries would not confer title and as such he relies upon the judgments of this court in ILR 1985 (2) Kar. 3062 (Fakirappa Bailappa Kambar vs. Kristappa Bailappa Kambar) and ILR 2005 Kar. 3430 (Hanumath Bheemappa Sanadi and others vs. Rudrappa Thammanna Sanadi and others).
He also submits that even otherwise there is no bar under Order 3 CPC for plaintiff to examine any other witness before plaintiff being examined and he relies upon the judgment of the Coordinate Bench of this Court in the case of SMT. GANGAVVA VS. ARJUNSA reported in ILR 2001 KAR. 2628. He also draws the attention to the order sheet of Trial Court dated 06.12.2006, wherein an entry has been made about noting the presence of plaintiff in the Court and she affixing her Left Thumb Impression on the paper furnished by the Court for being forwarded to the finger print expert, which according to him would establish the fact that plaintiff was not under any coercion to file the suit as was contended by defendant Nos. 1 and 2 and her presence before the Trial Court itself will demonstrate that the plea put forward by the defendant Nos.1 and 2 that she has not filed the suit and it is at the instance of some third parties or her son-in-law, is baseless. He relies upon the judgment of the Hon'ble Apex Court in the case of in SIROMANI VS. HEMKUMAR AND OTHERS (C.A.No.749/1965) and in SIROMANI AND ANOTHER VS. DINMANI (C.A.No.750/1965) reported in AIR 1968 SC 1299 to contend that a partition deed which is unregistered and which confers title on the parties, under such deed it would be inadvisable for want of registration. He also submits that any alienation by a member of joint family alienating the properties belonging to the joint family would have no impact on the right of plaintiff seeking for partition and such alienee cannot get decision and his rights, if any, would be circumscribed to be determined in the final decree proceedings and in support of his submission he relies on the judgment of the Hon'ble Apex Court in the case of GAJARA VISHNU GOSAVI VS. PRAKASH NANASAHEB KAMBLE and ORS. reported in 2009 SAR (Civil) 1012. On these grounds he seeks for allowing the appeal in RFA No.970/2009, as also the cross-objections filed and also prays for dismissing the appeals filed by defendant Nos.1 and 2 i.e., RFA Nos.1015/2008 and 770/2009.
21. Sri G.A.Srikante Gowda, learned Advocate appearing for fifth defendant in all these appeals/cross appeals would contend that item Nos.1 to 10 of plaint 'A' schedule properties was acquired by late Sri Govindaraju under the partition amongst his brothers and item No.11 was purchased by him as recorded by the trial Court and the only question that would arise is whether there was a partition in the year 1980 as pleaded by defendants-1 and 2 or not. He would support the finding recorded by trial Court in respect of these properties. He would contend that no independent witnesses have been examined to prove the partition, except the self serving testimony of D.Ws.1 and 2, there is no other evidence available on record to prove the execution of Ex.D-12. He would draw the attention of the Court to the admission of D.W.1 namely, cross examination dated 10.10.2006 whereunder she admits that she was not present when Ex.D-12 was executed and so also D.W.2 in her cross examination dated 17.11.2006. He would further draw attention of the Court to the admission of D.W.1 at paragraph 5 of the cross examination whereunder she admits that her husband and his brother were living together with the plaintiff.
He would also contend that item Nos. 12 and 13 was purchased by second defendant from out of the income generated from item Nos.1 to 11. He would also submit that D.W.2 in her cross examination dated 17.11.2006 has admitted that she sold about 1 acre on 07.10.1995 and the receipt of rental income which would indicate that income was generated from out of properties item Nos.1 to 11.
He would also submit that there are no pleadings as to what properties were allotted to each of the parties under Ex.D-12 and no independent witnesses were examined to prove the same. Hence, he prays for the cross appeals being allowed and also pray for dismissal of the appeals filed by defendants-1 and 2.
22. Having heard the learned Advocates appearing for the parties and on perusal of the records secured from trial Court, the evidence recorded by trial Court on the document produced by the defendants-1 and 2 by way of additional evidence, on re-appreciation of entire evidence and after bestowing my careful and anxious consideration to the contentions raised by the respective learned Advocates, this Court is of the considered view that following points would arise for consideration:
(i) Whether Court below was justified in arriving at a conclusion that oral evidence of Smt.Akkamma (plaintiff) was inconsequential or in other words, evidence tendered by her power of attorney holder - P.W.1 was sufficient enough to record a finding with regard to her signatures found on pleadings of the present suit, Left Thumb Impression's found on Palupatti - Ex.D-12 or the existence of joint family or there was no disruption in the joint family status in the year 1981?
(ii) Whether trial Court was correct in answering issue No.2 in the negative namely, that defendants 1 and 2 had failed to prove prior partition among the members of the family in the year 1981 itself by recording a finding that palupatti dated 20.12.1981 - Ex.D-12 was compulsorily registerable and as such it was inadmissible in evidence vide paragraph 42 of the judgment?
(iii) Whether trial Court has considered, examined and evaluated the evidence both oral and documentary in proper perspective and thereby judgment and decree passed by trial Court requires to be affirmed?
OR
Whether judgment and decree passed by the trial Court requires to be interfered either on account of non appreciation of available evidence or erroneous appreciation of available evidence or ignoring the available evidence?
(iv) Whether I.A.No.2/2013 filed by defendants-1(a) to (c) and 2(a) to (d) under Order 41 Rule 27 r/w Section 151 CPC and I.A.No.3/2013 filed by respondents-7 to 11 herein for referring Ex.D-12 and Annexures of said document marked as Ex.D-44 to D-47 to Forensic Science Laboratory, Hyderabad for ascertaining the age of these documents and nature of ink used in the said documents deserves to be allowed, rejected or what order?
(v) What order?
RE. POINT NO.1:
23. It is not in dispute that in the instant case, plaintiff did not enter the witness box. However, one Sri Atmaram who is brother of plaintiff's husband has entered the witness box on behalf of the plaintiff on the strength of purported Power of Attorney dated 20.11.2014 - Ex.P-1 said to have been executed by plaintiff. Said power of attorney has been marked as Ex.P-1. The father of P.W.1 and husband of Smt.Akkamma - plaintiff are own brothers as admitted by him in his cross examination dated 03.12.2014.
24. Order 3 Rules 1 and 2 CPC empowers the holder of a power of attorney to "act" on behalf of the principal. The word "act" found therein would indicate that it relates to acts done by the power of attorney holder in exercise of the power granted under the said document. To put it differently, if the power of attorney holder has carried out some "acts" on behalf of Principal pursuant to the power of attorney, he would be empowered to depose on behalf of the principal in respect of such "acts" done by the agent, but he cannot depose for the "acts" done by the principal. Similarly, in respect of the matter to which the principal is having personal knowledge, agent cannot depose as power of attorney holder of the principal.
25. The Hon'ble Apex Court in the case of JANKI VASHDEO BHOJWANI and ANOTHER vs INDUSTRIAL BANK LTD. and OTHERS reported in AIR 2005 SC 439 has held that a power of attorney holder cannot depose in the place and instead of principal. It is held:
"12. In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property. It was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross examined on those facts which are to the personal knowledge of the principal.
13. Order III, Rules 1 and 2 CPC empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2 CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of the attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined."
26. In the background of aforestated position of law, the facts on hand are required to be examined. The sum and substance of the plaintiff's case is that all the suit schedule properties are joint family properties and she had demanded partition of the suit properties by issuing a legal notice dated 26.06.1996 - Ex.D-2 whereunder it was claimed by the plaintiff, third defendant and seventh defendant that suit schedule properties are joint family properties and on the demise of Sri B Govindaraju they continued to be in joint possession and enjoyment of all the properties. It was also contended by them that they had great faith in the husband of defendants-1 and 2 and as such, they had affixed their Left Thumb Impressions and signatures on several occasions to certain papers and they had never questioned the bonafides of Sriyuths B.G.Jagadish and B.G.Ramesh. Plaintiff had specifically contended in the suit that she is an old woman without any worldly knowledge and was having great faith and affection towards her sons and she was not questioning her sons when they were obtaining her signatures or Left Thumb Impressions on blank papers and other female members had also affixed their left thumb impressions and signatures without questioning them and in short, plaintiff had pleaded that not only her intentions and ignorance had been misused by her sons and her daughters-in-law but also that of her daughters i.e., defendants-3 to 7. She has further pleaded that there was no partition and the alleged theory of partition propounded by defendants -1, 1(a) to 1(c), 2 and 2(a) to 2(d) in their reply notices dated 08.09.1996 and 07.08.1996 is a bogus partition and concoction of some fraudulent documents created by defendants-1 and 2 in active connivance of their late husbands with an intention to deprive the plaintiff and her daughters of their legitimate rights in the joint family properties. Thus, plea of fraud and misrepresentation has been pleaded specifically by the plaintiff. As such, it requires to be examined whether the plaintiff herself had to enter the witness box or was it sufficient for P.W.1 - agent of the plaintiff to depose on her behalf and substantiate the claim/plea put forward by the plaintiff in that regard.
27. There cannot be any dispute to the proposition that power of attorney holder would be competent to give evidence in respect of the matters arising out of the 'acts' done by him in pursuance of a Power of Attorney. In this background, trial Court has held that where evidence of a party in a given case was essential or not, instead of evidence of his PA holder depends on the facts and circumstances of each case and keeping this in mind, it has to be examined as to whether non-examination of plaintiff by stepping into the witness box was fatal to her case or not? Trial Court has proceeded to adjudicate issue No.1 which relates to plaintiff's proving that suit schedule properties are the ancestral and joint family properties and while examining issue No.2, it has rightly held that burden is on defendants-1 and 2 to prove that there was partition of the joint family properties in 1981 i.e., on 20.12.1981 as per Ex.D-12.
28. When P.W.1 came to be examined, second defendant filed an application under Section 151 CPC requesting the Court to discharge said witness and to direct the plaintiff to appear in person and tender evidence. Said application came to be dismissed on 19.02.2005. It was challenged before this Court in W.P.Nos.9242 and 9388/2005 (GM-CPC) and this Court by order dated 01.03.2005 rejected the writ petitions by reserving liberty to the petitioners therein to bring this fact to the notice of the trial Court at the time of final arguments. As such, said contention was examined by the trial Court namely, about the competency of P.W.1 to tender evidence on behalf of plaintiff. The trial Court having noticed this fact, has held that defendants cannot raise objection since the GPA holder of the plaintiff had filed an application for production of documents including the general power of attorney and when same was marked as Ex.P-1, it was not objected to by second defendant or any other defendants and as such, defendants cannot be allowed to object with regard to competency of P.W.1 to depose on behalf of plaintiff. In the application filed under Section 151 CPC namely, I.A.No.18 by second defendant on 03.02.2005, it has been contended in the affidavit supporting the application that power of attorney holder is not aware of the entire transaction and said power of attorney holder was even unable to disclose specifically when the power of attorney was executed and other details relating to suit schedule properties. In the light of said application being filed, as already noticed herein above, it came to be dismissed and affirmed by this Court reserving liberty to the defendants-1 and 2 to bring it to the notice of trial Court at the time of final arguments to consider the plea of defendants with regard to competency of P.W.1 to tender evidence on behalf of plaintiff. Thus, it was incumbent upon the trial Court to examine the contentions raised by defendants-1 and 2 in that regard. This fact has been completely ignored by the trial Court. On the ground that while marking the General Power of Attorney as Ex.P-1 through P.W.1 it was not objected to, trial Court has held that defendants cannot raise objection on this aspect. Marking of the document is one thing and the competency of the witness to speak on behalf of the principal is entirely different aspect. Merely because the General Power of Attorney was marked as Ex.P-1 when the agent was examined before trial Court on behalf of the plaintiff as P.W.1 by itself would not be sufficient to arrive at a conclusion that evidence so tendered by the agent is also binding on the principal.
29. That apart, marking of the document without being objected to would always be susceptible to scrutiny by an appellate Court. For this proposition the judgment of this Court in case of BHIMAPPA and OTHERS vs ALLISAB and OTHERS reported in ILR 2006 KAR. 3129 can be looked up whereunder it has been held that the words "appearance, application or act" found in Order 3 Rule 1 CPC would only mean appear, make application and take such other necessary steps as may be required to be taken up for the progress of the proceedings' It gives no guidance whatsoever for tendering evidence on oath as a power of attorney holder on behalf of the principal. When an agent acts on behalf of the principal and tenders evidence on behalf of principal, only such evidence which are within his knowledge would be acceptable and hearsay evidence would be redundant or would recede to background.
30. In the instant case, defendants-1 and 2 have specifically pleaded that there was severance of joint family status or in other words, disruption in the joint family status after the partition took place on 20.12.1981 - Ex.D-12. As to whether such disruption took place or whether there was severance of status as pleaded by the defendants in their written statements was no doubt required to be proved by them. To substantiate their claim, they had produced Ex.D-12 and plaintiff though admitted in the legal notice Ex.D-2 and in the plaint that she along with D.3 and D-7 had affixed their signatures and Left Thumb Impressions to certain papers furnished by the husbands of defendants-1 and 2, they had also pleaded that it was an outcome of fraud and misrepresentation. In fact, plaintiff further contended in the rejoinder filed to the written statement that she had never affixed her Left Thumb Impressions in Ex.D-12. If it were to be so, these are the facts which were within the personal knowledge of plaintiff alone and she alone had to depose to the said effect and power of attorney not being aware of these facts could not have spoken. Thus, non- examination of plaintiff was partially fatal to the plaintiff's claim.
31. This finding is also fortified by the deposition of P.W.1 himself. In his affidavit filed in lieu of examination-in-chief at paragraph 5 he has deposed that plaintiff's sons had misused the plaintiff's innocence and illiteracy and she had suspected that they have misused the Left Thumb Impressions obtained by them. He has deposed as under:
"Late Sri Govindaraju was the karta of the joint family xxx knowledge of the plaintiff. Her late sons had obtained the LTMs of the plaintiff to some documents, misusing her innocence and illiteracy and she was not in a position to question them why they were obtaining her LTMs and she believed them and she has put up her LTMs as they desired. Now she suspects that they have misused the LTMs of her for their gains."
In fact, P.W.1 has deposed in his cross examination dated 14.02.2004 that Smt.Akkamma alone got issued legal notice - Ex.D-2 claiming share in suit schedule properties and none had joined her in issuing the said notice. He has also stated that Smt.Akkamma alone asked for partition in the joint family properties and no other person joined her in demanding partition. This is contrary to the documentary evidence available on record namely, Ex.D-2 which would clearly indicate that it was got issued to defendants-1 and 2 by plaintiff and defendants-3 and 7.
32. Plaintiff having specifically pleaded that her late sons had obtained her Left Thumb Impression on some papers, misusing her innocence and illiteracy and suspecting that they have misused her Left Thumb Impressions for their gains, ought to have entered the witness box to prove these facts. For reasons best known, she did not enter the witness box. Yet, trial Court proceeded to hold that non-examination of plaintiff is inconsequential since Ex.P-1 - General Power of Attorney had been executed by the plaintiff in favour of P.W.1 and it was not objected to by the defendants 1 and 2 for being marked. It has been further held that on account of objection having not been raised at the time of marking of said document, it is not open to defendants 1 and 2 to object with regard to competency of the P.W.1, since they had not challenged the order passed on I.A.No.12 on 27.11.2004 as the reason for rejecting the contention of the defendants (vide paragraph 30 at internal page 31 of the trial Court judgment).
33. In fact defendants 1 and 2 had raised a plea with regard to disruption in the joint family status and to substantiate the said claim they had produced Ex.D- 12 by specifically contending plaintiff was also a signatory to the said document and as such it was incumbent upon the plaintiff to enter the witness box, particularly when P.W.1 has pleaded that he was not aware of what transaction took place prior to the execution of the Power of Attorney and when he had also pleaded his ignorance to identify the Left Thumb Impression of plaintiff in Ex.D-12 in his cross- examination dated 14.03.2006 P.W.1 has stated as under:
"21. It is true that I know the state of things relating to the suit subsequent to the execution of power of attorney in my favour. It is true that it is the LTM of Smt.Akkamma. I cannot identify it. I cannot identify LTM of Smt.Akkamma on any document as it is not possible to identify LTM of any person. It is true that it is for the said reason I cannot identify the LTM of Smt.Akkamma on palupatti dated 20.12.1981. It is true that daughters of Smt.Akkamma are in possession and enjoyment of properties fallen to their share under palupatti referred to above."
P.W.1 has also admitted in his cross examination dated 10.12.2004 that plaintiff - Smt.Akkamma was illiterate. He also admits in the cross examination of even date at paragraph 11 that Smt.Akkamma had affirmed her Left Thumb Impression to the sale deeds executed by her in favour of Sri Siddalingaiah and Smt.Rathnamma.
34. In the light of above evidence of P.W.1 it cannot be construed that the evidence of P.W.1 alone was sufficient or in other words, there was no need or necessity for plaintiff - Smt.Akkamma to enter the witness box. As such this Court is of the considered view that finding recorded by the trial Court that evidence of P.W.1 was sufficient to decree the suit and there was no need or necessity for plaintiff - Smt.Akkamma to enter the witness box cannot be accepted. Hence, point No.(1) is answered in the negative i.e., against the plaintiff and in favour of defendants-1, 1(a) to 1(c), 2, 2(a) to 2(d). RE: POINT NOs.(ii), (iii) and (iv):
35. These points being inter connected, they are taken up together for consideration and answered accordingly.
36. As could be seen from the pleadings of the parties, a specific plea raised by the plaintiff in the suit was to the effect that suit properties are joint family properties and the original propositus was Sri B Govindaraju namely, husband of the plaintiff and suit schedule properties had fallen to his share in the year 1962 when he got separated from the joint family of himself and his brothers and item No.(a) of schedule property was purchased by him and on his demise on 30.12.1976, the joint family members continued to be in joint possession and enjoyment of the suit properties.
37. Prior to filing of the suit, plaintiff got issued a legal notice dated 26.06.1996 - Ex.D-2 to defendants- 1 and 2 seeking partition of suit properties which was duly replied by them as per reply notices dated 08.09.1996 and 07.08.1996 respectively setting up a plea of prior partition, which was stoutly denied by the plaintiff in the plaint, itself contending that it is a fabricated, bogus partition and not binding on the plaintiff. It was also contended that defendants - 1 and 2 in active connivance with their late husbands had fabricated the said document and plaintiff's love and affection towards her sons had been misused by them. It is in this background, the trial Court framed issue No.2 casting burden on defendants-1 and 2 to prove the same. For the purpose of convenience and immediate reference, the said issue is extracted herein below:
"2. Whether defendant Nos.1 and 2 prove that there was a partition among the members of the family in the year 1981 itself, as such the suit filed by the plaintiff for partition is not maintainable as contended in their written statement?
In order to prove the said issue, the purported partition deed 20.12.1981 - Ex.D-12 came to be marked during the course of evidence of D.W.1 on 30.08.2009. The learned trial Judge has recorded at page 38 of the judgment that said document was marked subject to objection. However, as could be seen from the deposition of D.W.1, the objection came to be overruled on 30.08.2009. Extract of deposition of D.W.1 reads as under:
"I have filed my affidavit xxxx and correct.
2. Ex.D-1 is the palupatti xxxx in O.S.No.4554/1988. The left thumb mark xxxx my mother-in-law dated 07.09.1992. Ex.D-12 is the palupatti dated 20.12.1981 entered into by the plaintiff and her children including my husband. (The document is marked overruling the objection of learned counsel for plaintiff). Ex.D-13 is the endorsement xxxx portion of the affidavit."
(emphasis supplied by me)
Hence, much emphasis or weightage cannot be attached to the finding recorded by trial Judge. The learned trial Judge has examined as to whether Ex.D-12 is admissible in evidence or not, at paragraphs 39 and 40 of the judgment under challenge and has held it was compulsorily registerable under Section 17(b) of the Registration Act, 1908. The finding recorded by the trial Court in that regard reads as under:
"42. Thus, from the aforesaid discussion, it is clear xxx or not defendants have proved partition. When the document itself is inadmissible, for the reasons discussed above, it will have to be held that defendants cannot rely on the said document - Ex.D-12 to prove that there was a partition in the year 1981 as the document itself is totally inadmissible in evidence to prove that aspect."
Having recorded such a finding, learned trial Judge has proceeded to hold that said document would still be admissible and to find out the intention of the parties namely, as to whether they became divided in status or not has held that burden would be on defendants-1 and 2 to prove the same and as such has examined Ex.D-12 to find out as to whether there was disruption in the joint family resulting in severance of status vide paragraph 43. However, appeal being continuation of original proceedings and plea regarding inadmissibility of Ex.D-12 having been raised in this appeal, same is examined by this Court.
38. For the limited purpose of ascertaining as to whether there was disruption in the joint family or there was severance of status amongst the joint family members or not, a document can be looked into. The Hon'ble Apex Court in the case of KALE AND OTHERS vs DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS reported in AIR 1976 SC 807 has held that family arrangement may be oral in which case no registration is necessary and if the terms are reduced into writing, registration would be necessary, but distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the Court for making necessary mutation which by itself would not create or extinguish any right in the immovable properties and therefore it is not compulsorily registrable. It has been further held that even if the family arrangement was not registered, it could be used for collateral purposes namely, to show the nature and character of possession of the parties in pursuance of such family settlement. It has been held by the Apex Court as under:
"38. Rebutting the arguments xxx present case. Assuming, however, that the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it."
42. Finally in a recent decision xxx actually falls open."
In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents-4 and 5. Respondent No.1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. The learned counsel for the respondents placed reliance upon a number of authorities in Rachcha vs, Mt.Medha, AIR 1947 ALL 177, Chief Controlling Revenue Authority vs. Smt.Satyawai Sood, AIR 1972 Delhi 171 (FB) and some other authorities, which in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same.
44. In view of our finding xxx information of the Court. The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlememts. In Shyam Sunder v. Siya Ram, AIR 1973 All. 382, 389 it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title."
39. In the case of ROSHAN SINGH and OTHERS, APPELLANTS vs ZILE SINGH AND OTHERS reported in AIR 1988 SC 881 it has been held that partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts. It does not require any formality, and therefore, if parties actually divide their estate and agree to hold its severalty, there is an end of the matter. It is further held that the document through unregistered can however be looked into for the limited purpose of establishing a severance in status, though such severance would ultimately affect the nature of the possession held by the members of the separated family as co-tenants.
40. The Hon'ble Apex Court in the case of K.G.SHIVALINGAPPA (D) BY LRS AND OTHERS vs. G.S.ESHWARAPPA AND OTHERS reported in AIR 2004 SC 4130 has held that earlier partition if evidenced by unregistered partition deed, said document could be relied upon to establish the severance of the status in the joint family. It has been held:
"14. As stated above, in the case in hand, both the Tribunal and the High Court proceeded as if a departmental enquiry and a criminal trial could not proceed simultaneously, hence, they stayed the departmental enquiry which by itself, in our opinion, is contrary to the principles laid down in the above cited cases."
41. In the light of aforestated position of law, the document - Ex.D-12 relied upon by defendants-1 and 2 will have to be examined as to whether it would disclose there was existence of joint family and under said deed parties intended to put an end to it or it has resulted in disruption in the joint family status amongst its members with reference to the attendant circumstances and the evidence tendered by the parties. Before embarking upon such an exercise, the finding recorded by trial Court can be recaptulated for the purposes of convenience. It came to be held by trial Court:
Ex.D-12 does not suggest that it is a mere record of a previously completed transaction between the parties;
No person who have witnessed the said document has been examined;
D.Ws.1 and 3 are not parties to the said document and they have no personal knowledge;
The collateral document relied upon by defendants-1 and 2 marked as Ex.D-3 and D-4 cannot be accepted since parties to the said deeds were not examined.
The fingerprint expert who was appointed at trial Court stage has opined that LTM found on Ex.D-12 is not clear;
42. As already noticed hereinabove, for the limited purpose of ascertaining as to whether there was disruption in the status of the joint family or in other words, severance of joint family status, Ex.D-12 can be looked into. A bare perusal of Ex.D-12 would indicate that it is drawn on a stamp paper of Rs.100/- said to have been entered into between plaintiff, husband of defendants-1 and 2 and defendants -3 to 7. Recitals found in the said document would also disclose that under the said document, parties have divided their properties and respective shares are allotted to the parties. In other words, it is a right created in presenti and it does not disclose recording of a past partition by reducing into writing. Thus, it was compulsorily registrable document. It also requires to be noticed that Left Thumb Impression and signatures found on Ex.D- 12 is not denied by the plaintiff as well as defendants - 3 to 7. But on the other hand, in the rejoinder filed by the plaintiff to the written statement of defendants-1 and 2 plaintiff has contended that it was never acted upon. The evidence of P.W.1 namely, cross examination dated 03.12.2004 would indicate that in the family of plaintiffs and defendants, execution of palupatti for the purposes of dividing the joint family properties and to put an end to status of a joint family is not uncommon.
43. The said palupatti - Ex.D-12 was confronted to P.W.1 in his cross examination dated 03.12.2004 and he has denied about any such palupatti having been entered into by Smt.Akkamma and her children and he has also pleaded that he is unable to identify the signatures of defendants-3 to 7 as well as the signature of Sriyuths B.G. Jagadish and B.G.Ramesh namely, the husband of defendants-1 and 2. On the same date of cross examination, he has stated that he is not aware about plaintiff having entered into palupatti in the presence of witnesses Sri Shivashankar and Sri Raghu.
44. In his cross examination dated 13.04.2005, P.W.1 pleads that he is unaware about plaintiff and her children having entered into a partition. However, he has identified the signatures of defendants-3 to 7 in the Annexures appended to the panchayat palupatti - Ex.D-12. He also admits that they might have put signatures on the stamp paper also. His admission made in the cross examination dated 13.04.2005 reads as under:
"14. Witness identifies the signature of xxx respectively. I do not know whether Smt.Akkamma and her children entered into a partition or not. Witness identifies the signatures of B.G.Shakuntala, B.G.Leela, B.G.Geetha, B.G. Varalakshmi and B.G.Vijayalakshmi in the annexures of the alleged panchayat palupatti. They might have put their signatures on the stamp paper also."
He has further admitted that daughters of plaintiff namely, defendants- 3 to 7 are in possession and enjoyment of the properties fallen to their share under said palupatti. His admission reads as under:
"21. It is true that I know xxx palupatti dated 20.12.1981. It is true that daughters of Akkamma are in possession and enjoyment of the properties fallen to their share under palupatti referred to above."
In the light of the above admission of P.W.1, it cannot be gainsaid by the plaintiff or defendants-3 to 7 that execution of palupatti deed dated 20.12.1981 - Ex.D-12 itself is to be disbelieved or ignored.
45. In the present appeal, an interlocutory application I.A.No.2/2013 came to be filed by the appellant in RFA No.770/2008 under Order 43 Rule 27 CPC seeking for permission to produce original documents namely, Annexures - 'C', 'D', 'G' and 'H' said to be annexures of partition deed dated 20.12.1981. This Court, by order dated 26.02.2013 had referred the said documents to Directorate, Forensic Science Laboratory, Madivala, Bangalore for securing expert opinion by comparing the LTMs found in the original Annexures 'C', 'D', 'G' and 'H' with that of the admitted Left Thumb Impressions found in the trial Court records namely, Left Thumb Impression of Smt.Akkamma found in the white sheet appended to the memo of instructions dated 09.01.2007 (obtained in trial Court - O.S.No.6096/1997), Left Thumb Impression of Smt.Akkamma found in the plaint of O.S.No.4554/1988 marked as Ex.C-4 or Ex.D-7, Left Thumb Impression of plaintiff found in the affidavit dated 28.09.1988 filed in O.S.No.4554/1988 and Left Thumb Impression of plaintiff found in the affidavit dated 12.10.1988 filed in O.S.No.4554/1988 for being compared with the Left Thumb Impressions found on the stamp paper dated 15.12.1981/16.12.1981 and also the Left Thumb Impressions found in the Annexure-A to the said document. It was also ordered that Court Commissioner should compare the signatures found in Annexures - 'C', 'D', 'G' and 'H' to said document with the signatures found on the vakalathnamas filed in O.S.No.6906/1997 marked as Exs.C-2, C-3 and C-4 respectively.
46. On report being received, it was opened in the presence of the learned Advocates appearing for the parties on 27.03.2013 and noticed that it contained only report relating to the signatures and no opinion had been furnished with reference to thumb impressions or Left Thumb Impressions. In the light of said report received from the Director, Forensic Science Laboratory to the effect that said office would not undertake examination of thumb impression and same will have to be examined by the Office of Superintendent of Police, Finger Print Bureau, Madivala, Bangalore the Left Thumb Impressions found on Annexures-'C', 'D', 'G' and 'H' was referred to the Superintendent of Police, Finger Print Bureau, Madivala, Bangalore to furnish opinion in that regard.
47. Certain clarifications also came to be sought for by the said Finger Print Bureau and this Court by order dated 30.05.2013 clarified the doubts aired by the Finger Print Bureau. Subsequently thereafter, a report came to be filed and same was taken on record by this Court by order dated 26.06.2013. A detailed objections came to be filed by 7th respondent (in RFA No.770/2008 i.e., Smt.B.G.Shakuntala who was third defendant before trial Court) objecting for the said additional evidence being taken on record. Hence, this Court by order dated 26.06.2013 referred the matter to the trial Court for recording additional evidence on I.A.No.2/2013 and all the reports of the experts and connected documents were transmitted to the trial Court for recording evidence of the parties. Trial Court examined D.W.1 and through her, marked Ex.D-44 to D-47(a) and third defendant Smt.B.G.Shakuntala was examined as D.W.4 and no documents were marked on her behalf.
48. An application under Order 26 Rule 10 CPC read with Section 151 CPC was filed by defendants-1, 1(a) to (c) before trial Court to receive the FSL reports dated 08.03.2013 and 12.03.2013 for being taken on record and matter was referred back by trial Court to this Court.
49. This Court by order dated 23.09.2013 remitted the matter to the trial Court for the limited purpose of permitting the parties to examine the experts who have submitted the report. Pursuant to the same, Sri M.T.Hegde, Police Inspector, Finger Print Expert came to be examined as C.W.1 and through him, Exs.C-5 to C-7 came to be marked and Sri Syed Asgar Imam, Assistant Director, Forensic Science Laboratory, Bangalore was examined as C.W.2 and through him, Exs.C-1, D-1, G-1, H-1, C-4, D-4, G-4, H-4, C-2, D-2, G-2, H-2, C-3, D-3, G-3, H-3, C-5, D-5, G-5 and H-5, the signatures of defendants - 3, 4, 5, 6 and 7 came to be marked. Through the said witness, Exs.C-2, C-3 and C-4 namely, vakalathnama given by defendants-3 to 7 in the suit in question also came to be marked and so also their signatures as per Ex.C-2(a), C-3(a), C-4(a), C-3(b) and C-2(b) and after recording their evidence, matter came to be re-transmitted by the trial Court to this Court and thereafter matter has been adjourned from time to time. Thus, no orders have been passed on I.A.No.2/2013 and I.A.No.3/2013. It would be necessary for this Court to pass orders on I.A.No.2/2013 since it would have a bearing on the finding that would be recorded by this Court on point Nos.(ii) and (iii).
50. It would be necessary to note at this juncture itself that trial Court on an application filed by defendants-1 and 2 had appointed a handwriting expert and finger print expert by name Smt.C.V.Jayadevi to examine thumb impressions found on the deed dated 20.12.1981 Ex.D-12 namely, thumb impression therein which is stated to be that of plaintiff - Smt.Akkamma to be compared with her admitted thumb impression obtained in Court on 06.12.2006 which thumb impression was also duly identified by Sri R Chandranna, learned Advocate appearing on her behalf. Same was forwarded to the said finger print expert. A report came to be received from the said fingerprint expert. Though second defendant filed objections to said report trial Court has recorded that none of the parties to the suit have filed objections to said report and said report has been taken into consideration by the trial Court for adjudication of plaintiffs claim. As already noticed herein above, the trial Court has decreed the suit in part.
51. The said Smt.Akkamma during her life time had filed a suit O.S.No.4454/1998 on the file of Civil Judge, Bangalore against Corporation of City of Bangalore for the relief of declaration and mandatory injunction in respect of property bearing Sy.No.43, Yeshwanthpur village, Bangalore North Taluk, measuring East by 24' West by 103', North by 122' and South by 155'. Original of the said plaint came to be marked as Ex.C-4 and D-7. Certified copy of vakalathnama of Smt.Akkamma filed in the said suit i.e., O.S.No.4554/1988 came to be marked as Ex.D-6. Affidavit accompanying I.A.No.1 filed in O.S.No.4554/1988 came to be marked as Ex.D-8. Affidavit accompanying I.A.No.2 filed in O.S.No.4554/1988 came to be marked as Ex.D-9. It is not in dispute that Left Thumb Impression found in Ex.C-4 (D-7), D-8, D-9 as well as Left Thumb Impression found in vakalathnama - Ex.D-6 which came to be marked as Ex.D-6A are the Left Thumb Impressions of Smt.Akkamma. Likewise, signatures found in the affidavit marked as Ex.D-10 and also in the affidavit dated 07.09.1992 which came to be marked as Ex.D-11 which relates to O.S.No.4454/1998 and Left Thumb Impressions found therein are undisputably that of Smt.Akkamma. The Court Commissioner Smt.Jayadevi has compared their signatures and has given her report on 12.05.2007 as under:
"I have carefully examined the specimen thumb impressions of Smt.Akkamma and marked as 'A'.
I have also carefully examined the disputed impressions in Ex.D-12 and marked as Q1, Q2 and Q3.
I have taken photographs of disputed and specimen impressions. Enlarged photographs with corresponding negatives are herewith enclosed.
The disputed impressions are compared with that of specimen impression.
On comparison, there is overlapping on the impression Q3, except to the left side bottom portion, but ridges are not clear.
In the impressions Q1 and Q2 ink is not applied properly to the thumb. Therefore, the ridges are very faint.
For the above said reasons, I am of the opinion that the disputed impressions Q1, Q2 and Q3 are not clear to find out the identity of the impressions."
52. The learned trial Judge vide paragraph 16 of the judgment has held that no one has filed objections to the said report of the Commissioner (Finger Print Expert) and has opined that it can be looked into for all purposes. The said report has been referred to in paragraph 61 of the judgment and learned trial Judge has concluded as under:
"Thus, from the opinion given by the Finger Print Expert, it can be stated that the defendants-1 and 2 could not prove that the LTM on Ex. D-12 is the LTM of the plaintiff only."
However, the records would disclose that second defendant had filed objections to the said report on 20.07.2007 and by order dated 01.08.2007 trial Court has rejected the objection filed by second defendant to the Commissioner's report. Thus, inconsistency with regard to the Commissioner's report is writ large. This would clearly indicate that the trial Judge has ignored the material available on record and on the premise that objections to the Commissioner's report have not been filed, has proceeded to adjudicate the issues relating to Ex.D-12. Thus, finding recorded by the learned trial Judge on issue No.2, particularly with reference to Ex.D-12 has to be negatived.
53. At this juncture itself the evidence of the Court Commissioners can be looked into for the purposes of ascertaining or examining as to whether the Left Thumb Impression of plaintiff and signatures of defendants-3 to 7 found on Ex.D-12 is the real and correct signature or not?
54. Both these witnesses namely, C.W.1 (Sri M.T.Hegde) and C.W.2 (Sri Syed Asgar Imam) are from the Department of Home, Government of Karnataka, Finger Print Bureau, Criminal Investigation Department, Bangalore District and Forensic Science Laboratory, Bangalore. Both of them have in an unequivocal terms in their report - Exs.C-5, C-6 and C-8 have opined that the thumb impression as well as signatures both admitted and disputed are of the same person. The report of C.W.1 marked as Ex.C-6 would disclose that properties allotted to the share of Smt.Akkamma as per 'C' schedule and it contains the Left Thumb Impression of Smt.Akkamma. The said disputed Left Thumb Impression of Smt.Akkamma has been compared by C.W.1 with the admitted Left Thumb Impression found on the affidavit filed in O.S.No.4554/1988 marked as Ex.C-4 which Left Thumb Impressions were marked as Q-7 and Q-9 and has opined that they are one and the same. Likewise, the Left Thumb Impression of Smt.Akkamma found on Exs.D-44, D-45, D-46, D-47 marked as Q-1, Q-2, Q-3 and Q-4 have been compared with the admitted signatures of Smt.Akkamma found on Ex.C-4 - D-7 which came to be marked as Q-5, Q-6, Q-7, Q-8, Q-9, Q-10, Q-11 and Q-12 and held that the thumb impressions at Q-1, Q-2, Q-3, Q-4, Q-7, Q-9, Q-11, Q-15 and Q-17 are the thumb impressions of Sm+t.Akkamma and they are one and the same.
55. C.W.2 who is the Assistant Director, Forensic Science Laboratory, was entrusted to examine the Annexures-C,D,G and H namely, Schedule of properties allotted to the shares of defendants-3 to 7 and he has compared the signatures found on these documents along with the signatures of the defendants found on the vakalathnamas filed in the suit in question and has opined "they are sufficient to express opinion of their common authorship".
56. At this juncture itself, it would be apt to note the contention of the learned Advocates appearing for defendants-3 to 7 which is to the effect that the purported Annexures to Ex.D-12 which has been marked as Ex.D-44 to 47 are concocted and not to be looked into, requires to be examined for the purposes of outright rejection. At the first instance before the trial Court, none of the defendants-3 to 7 entered the witness box. Only when defendants-1, 1(a) to (c), 2,2(a) to (d) filed application for additional evidence and matter came to be remitted back to the trial Court for recording of oral evidence, at that juncture, Smt.B.G.Shakuntala i.e., third defendant entered the witness box. In fact, she had filed written statement and had specifically contended at paragraphs 3 and 4 of her written statement that there was no partition of the joint family properties and she denied the plea of defendants-1, 1(a) to (c), 2, 2(a) to (d) by specifically contending that no such partition had taken place. However, giving a complete go-by to the said plea raised by her, in her cross examination dated 15.07.2013, she has admitted the signatures found on Ex.D-44 to D-47 as her signature. Her admission reads:
"8. I have studied xxx affidavit. Now I see Ex.D-44 to D-47. they bear my signature. In Ex.D-44, my signature is at Sl.No.4 shown as Ex.C-1. In Ex.D-45, my signature is marked as D-45(a). In Ex.D-46, my signature is at Sl.No.4 shown as Ex.g-1 and in Ex.D-47, my signature at Sl.No.4 shown as h-1. Witness volunteers that she has not signed such documents. But she admits that Ex.D-44 to D-47 contains her signatures. It is not true to suggest xxx put her thumb impression.
9. My signature was obtained on a blank paper by stating that sites have been formed and khata has to be effected. I do not know the details of the said documents of formation of sites. I do not remember in which year I have signed on blank document. It is not true to suggest xxx to cross examine DW-4."
In the light of above evidence of Experts as well as that of D.W.4 namely, third defendant-Smt. B.G.Shakuntala, the one and only conclusion which requires to be drawn, said documents tendered in evidence are to be accepted as additional evidence since they are required to do complete justice between parties.
57. The learned Advocate appearing for defendants-3 and 7 who has filed I.A.No.3/2013 under Order 26 Rule 9 CPC read with Section 151 CPC seeking for Ex.D-12, D-44 to D-47 being sent to FSL, Hyderabad,Andhra Pradesh to determine the age of ink and the handwriting on the said documents to be compared with the age of the ink of signatures of the plaintiff and her daughters requires to be considered with utmost circumspection for the reasons more than one. In the first instance, before the trial Court when Smt.Jayadevi was appointed as Court Commissioner, she had opined that she is unable to compare the Left Thumb Impression found on Ex.D-12 with that of admitted Left Thumb Impression of Smt.Akkamma on the ground that the ink on the said document is smudged and not clear and so also, is the opinion of C.W.1 in his report - EX.C-6. However, C.W.1 as well as C.W.2 who have compared the thumb impression found on Ex.D-44 to D-47 as well as the signatures found on the very same documents have clearly opined that they are one and the same made by the persons whose names are found in those documents namely, that of Smt.Akkamma and defendants-3 to 7. As such, sending the said document once again to another expert would only be an exercise in futility. Secondly, these two Expert witnesses who have no interest whatsoever in the subject matter of reports submitted by them, have entered the witness box and they have also been subjected to cross examination extensively. Nothing worthwhile has been elicited in their cross examination to disbelieve their evidence. Thirdly, Smt.B.G.Shakuntala i.e. third defendant who entered the witness box as D.W.4 after submission of reports by the Experts, has admitted that the signatures found on Ex.D-44 to D-47 is her signature. Hence, this Court is of the considered view that there is no merit in the application and I.A.No.3/2013 deserves to be rejected.
58. Hence, for the reasons aforestated, I.A.No.2/2013 deserves to be allowed and accordingly, it is allowed. I.A.No.3/2013 deserves to be dismissed and accordingly, it stands dismissed.
59. Apart from relying upon Ex.D-12 to establish there was prior partition, several other documents also came to be relied upon by defendants-, 1, 1(a) to (c), 2, 2(a) to 2(d). When these documents relied upon by the defendants to establish and drive home the point that there was a partition in the year 1980 and as such there was severance of the joint family status is examined, it would disclose that Ex.D-3 is a sale deed dated 25.02.1991 executed by Smt.B.G.Leela - fourth defendant in favour of one Sri Paul Dorai whereunder she had sold a site bearing No.70 in Sy.No.24 of Jalahalli village, Yashwanthpur Hobli (which is a portion of property described as item No.4 of 'A' schedule in the plaint) . Recitals in this document - Ex.D-3 would disclose that vendor namely, fourth defendant has specifically stated that she acquired title to the said property under an "unregistered partition deed executed between the daughters and sons of late Sri B.Govindaraju before Panchayatdar on 20.12.1981". This admission in the sale deed by fourth defendant would clearly go to show that she is not only a signatory to Ex.D-12 but she had also acted upon said document. The executant of Ex.D-3 namely, fourth defendant has not entered the witness box. She has not denied the execution of the said document. She has not filed her written statement denying the execution of the said document. Defendants-1 and 2 have also produced one more sale deed dated 22.09.1997 marked as Ex.D-4 which would disclose that it is a sale deed executed by Smt.Akkamma (plaintiff) represented by her power of attorney holder Smt. N.Dhanalakshmi under which document site bearing No.1/1, Ramachandrapura Panchayat has been sold in favour of one Sri S.Keshav Babu. The said property is described in schedule 'B' of the plaint. This property has been allotted to Smt.Akkamma under Ex.D-12. Likewise, Smt.Akkamma has also not entered the witness box. She has not denied the execution of power of attorney dated 22.08.1984 authorising Smt.N.Dhanalakshmi to act on her behalf and execute the sale deed - Ex.D-4 in favour of Sri S.Keshav Babu. The trial Court has proceeded to reject this documentary evidence available on record on the ground that parties to the said document were not examined vide paragraphs 51 and 52 of the judgment. The recitals in a registered document prevails over any other contrary pleading or evidence. A sale deed is not a document which requires attestation. Proof of sale deed does not require attestation and therefore it cannot be questioned on the ground of non-examination of any attesting witnesses. As to whether non-examination of attesting witness to a sale deed would be fatal with regard to proof of that document came to be considered by Apex Court in the case of HANS RAJI (SMT.) vs YASODANAND reported in (1996)7 SCC 122 and held that sale deed cannot be questioned on the ground of non-examination of an attesting witness. It has been observed by Apex Court to the following effect:
"10. So far as the applicability to the proviso to Section 68 is concerned, it must be noted that there was no occasion for the respondent to examine any attesting witness to the document in question as it was a sale deed which never required any attestation and even if some "marginal" witnesses had attested the document the document did not attract Section 68 of the Evidence Act which in term applies to the proof of execution of document required by law to be attested. It reads as under:
"68. Proof of execution of document required by law to be attested --- if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied"
Therefore, Section 68 would not cover such a transaction. Hence there would remain no occasion to invoke the proviso to Section 68 with a view to finding out whether the execution of such a document was specifically denied by the adverse party or not. Consequently, all the main contentions canvassed before the High Court which are repelled by the High Court cannot be said to be wrongly repelled."
60. Section 92 of the Evidence Act excludes any oral evidence or agreement relied upon contrary to the recitals found in a registered document. The person who asserts that recital/s in a registered document should not be accepted or it cannot be relied upon, has to establish the same by tendering rebuttal evidence. There is no such rebuttal evidence tendered in the instant case. On the other hand, these two documents - Ex.D-3 and D-4 have come into existence at an undisputed point of time when there was no dispute between the parties. The executants have not denied the execution of said deeds. Thus, the irresistible conclusion which will have to be drawn is, the recitals found in the said document has to be accepted without any difficulty.
61. In fact, P.W.1 in his cross-examination dated 14.03.2006 has admitted that pursuant to the Palupatti dated 20.12.1981 - Ex.D-12 the daughters of Smt.Akkamma i.e., defendants-3 to 7 are in possession of the properties which had fallen to their share and he also admits that sons of Smt.Akkamma i.e., husband of first defendant and second defendant have disposed of substantial portions of the property fallen to their share and admission reads as under:
"21. It is true that I know xxx LTM of any person. It is true that it is for the said reason I cannot identify the LTM of Smt.Akkamma on palupatti dated 20.12.1981. It is true that daughters of Smt.Akkamma are in possession and enjoyment of the properties fallen to their share under palupatti referred to above. It is true that sons of Smt.Akkamma have disposed of substantial portion of properties allotted to their share during their life time.
62. From the above discussion of oral and documentary evidence, it would clearly emerge:
(a) there was disruption in the joint family of Sri B Govindaraju and his family members in the year 1983;
(b) a document styled as palupatti came into existence on 20.12.1981 as per Ex.D-12;
(c) pursuant to the said division of properties under Ex.D-12, the signatories and beneficiaries under the said document acted upon it.
(d) The plaintiff and fourth defendant who were also allotted properties under Ex.D-12 have sold some of the properties allotted to them and it is evidenced by Ex.D-3 and D-4 - sale deeds.
(e) The purchasers of properties sold by son of plaintiff have been put in possession of various portions of Schedule 'A' and 'B' properties and they are in possession and enjoyment of the same without any interruption from anyone including plaintiff and defendants-3 to 7.
63. Yet another factor which cannot go unnoticed is the fact that purchasers of these properties have also acted upon the sale deeds executed in their favour by plaintiff's son, got the khatha transferred to their names and they have been paying taxes to the municipal authorities as per Exs.D-15 and D-16.
64. In the light of the above evidence, it cannot be gainsaid by plaintiff and defendants-3 to 7 that execution of palupatti dated 20.12.1981 - Ex.D-12 itself is to be disbelieved or ignored. To put it differently, it has to be held that defendants 1 and 2 have successfully proved there was severance of status of the joint family in the year 1981 by virtue of panchayat palupatti dated 20.12.1981 Ex.D-12 and parties to the said deed have acted upon it.
65. In the light of aforestated discussions, point No.(ii) and (iii) is answered in the negative namely, that trial Court was not justified in answering issue No.2 in the negative and it erred in not considering the available evidence in proper perspective and had also ignored to consider the available evidence and thereby it has resulted in miscarriage in the administration of justice.
66. For the reasons aforestated, I proceed to pass the following:
JUDGMENT
(i) RFA No.770/2008 and RFA No.1015/2008 filed by defendants-1, 1(a) to (c), 2, 2(a) to (d) are hereby allowed and judgment and decree dated 10.03.2008 passed in O.S.No.6906/1997 by XXII Addl.City Civil Judge, Bangalore is hereby set aside and suit O.S.No.6906/1997 stands dismissed.
(ii) RFA No.970/2009 and RFA Crob No.13/2009 filed in RFA No.770/2008 by defendants-3 and 7 are hereby dismissed.
(iii) RFA Cross Appeal No.8/2010 filed in RFA No.1015/2008 is hereby dismissed.
(iv) I.A.Nos.1/2008 filed in RFA No.770/2008 and RFA No.1015/2008 for stay of judgment and decree passed in O.S.NO.6906/1997 does not survive for consideration and it stands dismissed.
(v) I.A.No.4/2013 in RFA NO.770/2008 filed by respondents-7 and 11 for amendment of the plaint does not survive for consideration in view of the fact that suit itself has been dismissed. Hence, I.A.No.4/2013 is hereby dismissed.
(vi) All other pending applications stands consigned to records.
(vii) No order as to costs.
(viii) Registry is directed to draw the decree accordingly.