SUBRAYA M.N. Vs. VITTALA M.N.& ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 5805 of 2016, Judgment Date: Jul 05, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5805 OF 2016
(Arising out of SLP(C) No.27268 of 2008
SUBRAYA M.N. ...Appellant
Versus
VITTALA M.N. & ORS. …Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal is preferred against the judgment dated 20.03.2008
passed by the High Court of Karnataka in R.F.A. No.805 of 1998 dismissing
the appeal preferred by the appellant-defendant and thereby confirming the
judgment and decree for partition passed by the trial court.
3. Briefly stated the case of respondents-plaintiffs is as
follows:-The appellant-defendant and the respondents-plaintiffs are the
sons of one late Narayana. The suit scheduled property comprises of item
No.1 bearing S.No.69/69 measuring 1.00 acre; item No.2 bearing S.No.69/70
measuring 0.25 acre and item No.3 bearing S.No.69/5C2 measuring 1.00 acre.
Items No. 1 and 2 are the joint family property of late Narayana. Narayana
died in the year 1962. Plaintiffs No.3 and 4 were working in the army and
were sending money to the joint family and the joint family affairs were
run by the appellant-defendant. Respondents No. 3 and 4 retired from the
army in the years 1988 and 1989 respectively. House in item No.2 was
constructed in the year 1980 from out of the joint family income and the
contribution made by respondents No.3 and 4. Late Narayana was in
possession of suit property item No.3 and had converted the same from
forest land to a wetland and the same was further developed from out of the
joint family income and the contribution made by respondents No.3 and 4.
Respondents-plaintiffs averred that taking advantage of absence of the
plaintiffs, appellant filed an application to the Tehsildar for grant of
patta for item No.3-S.No.69/5C2 which was opposed by the respondents.
Alleging that the appellant is attempting to grab the suit properties,
respondents-plaintiffs filed the suit for partition claiming 1/5th share to
each of them.
4. In the written statement, appellant-defendant claimed that so
far as items No.1 and 2 are concerned, plaintiffs No.1 and 2 have sold
their shares-0.50 acre of land to the defendant and the third plaintiff as
per sale deed dated 28.04.1976 and plaintiffs have no right to claim
partition in items No.1 and 2. It is further averred that there was a
panchayat in the village on 18.03.1995 wherein plaintiffs No.3 and 4 and
defendant participated and it was agreed between the parties that the
defendant will give Rs.50,000/- to plaintiffs No. 3 and 4 and defendant
will have all rights over items No.1 and 2. So far as suit property in
item No.3 is concerned, appellant-defendant claimed that he had encroached
the said area of 1.25 acre in S.No.69/5C2 in the year 1962 and converted
the same into wetland and applied to the Government to regularize his
encroachment. After enquiry, the revenue authorities have granted patta to
the defendant and hence item No.3 is the self-acquired property of the
defendant and the plaintiffs have no right to claim any share.
5. On the above pleadings, trial court framed five issues.
Plaintiffs No. 3 and 4 were examined as PWs 1 and 2 and two more witnesses
were examined as PWs 3 and 4. Defendant examined himself as DW-1 and
examined four other witnesses. During the course of trial, respondents
No.1 and 2-plaintiffs No.1 and 2 were examined as CWs 1 and 2 and they have
stated that they have no claim or right in items No.1 and 2.
6. Upon consideration of evidence, trial court held that sale deed
(Ex.D13) dated 28.04.1976 is proved and the said sale is only by plaintiffs
No. 1 and 2 and not by plaintiffs No. 3 and 4 and they cannot be said to
have relinquished their right by virtue of resolution of panchayat or
receipts produced as Exs. D14 and D23 as there can be no relinquishment
without any registered documents and on those findings held that plaintiffs
No.3 and 4 are entitled to 1/3rd share each in items No.1 and 2. So far as
item No.3 is concerned, trial court held that the defendant has failed to
prove that the sum of Rs.3489/- paid by him towards the T.T. fine was from
out of his own income and held that the plaintiffs No.3 and 4 are entitled
to 1/3rd share each in item No.3 also.
7. Being aggrieved, the defendant preferred appeal before the High
Court in R.F.A. No.805 of 1998. Affirming the judgment of the trial court,
High Court held that in the absence of any conveyance deed, on the basis of
Exs. D14 and D23, it cannot be held that the share of plaintiffs No.3 and 4
is transferred to the defendant. So far as item No.3 is concerned, High
Court held that the patta was granted in favour of the defendant after
filing of the suit and the defendant has failed to prove his independent
income to pay the amount for grant of land and on those findings dismissed
the appeal filed by the appellant. Being aggrieved, the appellant is before
us.
8. Learned counsel for the appellant submitted that so far as
items No.1 and 2 are concerned, plaintiffs have forfeited their right after
receiving the money paid by the defendant and the courts below have failed
to appreciate the oral and documentary evidence. It was submitted that
courts below failed to appreciate that the item No.3 was developed and
cultivated by the defendant, in recognition of which patta was granted by
the Government to the defendant on 19.06.1997 and courts below erred in
treating item No.3 of the suit scheduled property as a joint family
property. It was submitted that item no.3 was never in the possession of
late Narayana and that patta had been granted to the defendant after
rejecting the objections made by plaintiffs No.3 and 4, which was not
properly appreciated by the High Court.
9. Per contra, learned counsel for the plaintiffs No. 3 and 4
contended that the appellant-defendant failed to discharge his burden of
proving that the plaintiffs have forfeited their shares in items No.1 and 2
of the suit scheduled property. It was further contended that it is
brought on evidence that item No.3 of suit scheduled property was in the
possession of late Narayana who had developed the same and the defendant
cannot regard item No.3 as his self-acquired property. Onbehalf of the
plaintiffs, it was urged that the courts below have recorded concurrent
findings that plaintiffs No.3 and 4 are entitled to 1/3rd share in each of
the suit scheduled property and the said concurrent findings cannot be
interfered with.
10. We have carefully considered the rival contentions and perused
the impugned judgment and material on record.
11. So far as the relationship between the parties is concerned, it
is not in dispute that the defendant and the plaintiffs are sons of late
Narayana. It is also available on record that Narayana had two daughters
who are married and have not claimed any right with regard to the suit
scheduled property. The mother of the plaintiffs died in the year 1987.
Plaintiffs No.1 and 2 examined in the trial court as CWs 1 and 2 have
stated that they do not claim share in the suit properties. Consequently,
the dispute pertaining to partition of the suit scheduled property was
limited to plaintiffs No.3 and 4 and the appellant-defendant.
12. So far as item No.1 in S.No.69/69 measuring 1.00 acre; item
No.2 in S.No.69/70 measuring 0.25 acre are concerned, plaintiffs No.1 and 2
have executed a registered sale deed (Ex.D13) dated 28.04.1976 in favour of
plaintiff No. 3 and the defendant and under the sale deed they have sold
their shares of 50 cents each (25 cents + 25 cents). So far as plaintiffs
No.3 and 4 are concerned, case of the defendant is that plaintiffs No.3 and
4 agreed to receive a sum of Rs.50,000/- in lieu of their shares in items
No.1 and 2 of the suit scheduled property. Defendant had produced Ex.D14
(dated 19.05.1995) executed by plaintiff No.3 for Rs.20,000/- in favour of
the defendant and Ex.D23 (dated 12.12.1994) said to have been executed by
plaintiff No.4 in favour of the defendant in lieu of his share in the
property items No.1 and 2. In his evidence, defendant-DW-1 stated that a
panchayat was held in the village on 18.03.1995 in which plaintiffs No. 3
and 4 and defendant participated and a resolution (Ex.D22) was passed in
the panchayat. Ex.D22 is the resolution of the village panchayat which is
signed by panchayatdars, defendant and plaintiffs No.3 and 4 in the
presence of panchayatdars. The said resolution reads as under:-
“…….
It has been decided that Subraya will be given the residential house and 40
cents of coffee estate being the shares of Gopal and Lingappa agreed to be
sold absolutely to Subraya at Rs.50,000/- each. Out of the amount of
Rs.20,000/- has already been paid by Subraya to Gopal and Lingappa and
remaining amount of Rs.30,000/- is agreed to be paid by Subraya in two
installments i.e. at Rs.15,000/- each and the 1st instalment of Rs.15,000/-
will be paid before 30.4.1996 to the said Gopal and Lingappa and can obtain
receipt therefor and the balance of Rs.15,000/- is agreed to be paid by
Subraya on 15.04.1997 along with the bank rate of interest that is to say,
effective from 18.03.1996 to be discharged through the panchayat and obtain
necessary receipt for the same. Gopal and Lingappa have relinquished their
rights over the property and handed over the same to Subraya today itself.
If the parties to this proceedings do not perform their part of contract
and fail to act, they will held liable and responsible for the
consequences. Subraya will have all the rights over the property and the
house henceforth and enjoy the same and the Gopal and Lingappa agree to
cooperate with Subraya in perfecting his title.”
Case of the defendant is that the panchayat resolution has been acted upon
and that the defendant has paid a sum of Rs.15,000/- each to plaintiffs
No.3 and 4.
13. To substantiate his plea that there was a panchayat in which
plaintiffs No.3 and 4 have relinquished their rights in items No.1 and 2 of
the suit properties, defendant has examined C.D. Annaiah (DW-2) who deposed
that the plaintiffs No.3 and 4 have received money from the defendant in
respect of items No.1 and 2. He further stated that as per the panchayat
resolution Ex. D22, defendant had also paid a sum of Rs.15,000/- to each of
the plaintiffs. DW-3-Belliyappa who is the brother-in-law of the plaintiffs
and defendant i.e. husband of their sister by name Poovamma has stated
about the panchayat and that money was paid by the defendant to plaintiffs
No.3 and 4 and third plaintiff signed the receipt (Ex.D14) and Ex.D23 is
the receipt pertaining to plaintiff No.4 and he has not signed in the
receipt.
14. Defendant has also examined DW-4-C.B. Muthappa who is the
Chairman of the Kanoor Village Panchayat had deposed that the panchayat was
held between the parties regarding dispute in respect of the suit property
items No.1 and 2. He had produced Ex.D34-resolution book of the panchayat
containing the original resolution Ex.D22 dated 18.03.1995.
15. Considering the plea of relinquishment of their right by
plaintiffs No.3 and 4 in items No.1 and 2, after referring to Ex.D22
resolution and the oral evidence, trial court as well as the High Court
held that in the absence of any conveyance deed Exs.D14, D23 and D22, it
cannot be established that plaintiffs No. 3 and 4 have forfeited their
rights in respect of items No.1 and 2 of the suit scheduled property.
Courts below have recorded findings that even though Ex.D14 bears signature
of plaintiff No.3, Ex.D23 does not bear the signature of plaintiff No.4.
It was further held that those two receipts do not indicate that the amount
has been received by plaintiffs No.3 and 4 in lieu of their shares in items
No.1 and 2 of the suit scheduled property and mere production of Ex.D14 and
Ex.D23 receipts are not helpful to the appellant-defendant to contend that
plaintiffs No.3 and 4 have forfeited their rights in respect of their
shares in items No. 1 and 2. Even though Exs. D14 and D23 do not contain
the survey number, as noticed earlier, Ex.D22 panchayat resolution refers
to suit scheduled property items No.1 and 2 in S. No.69/69 measuring 1.00
acre and S.No.69/70 measuring 0.25 acre and that amount of Rs.20,000/- has
already been paid by the defendant to plaintiffs No.3 and 4. As pointed out
earlier, Ex.D22 resolution is signed by the plaintiffs No.3 and 4 and also
by the panchayatdars. In our considered view, the trial court as well as
the High Court was not right in brushing aside the oral and documentary
evidence adduced by the defendant to prove that plaintiffs No.3 and 4 have
relinquished their right in items No.1 and 2 of suit scheduled property.
16. Under Section 17 of the Registration Act, the documents which
purport or operate to create, declare, assign, limit or extinguish any
right, title or interest of the value of one hundred rupees and upwards,
are to be registered. Under Section 49 of the Registration Act no document
required by Section 17 or by any provision of the Transfer of Property Act
to be registered shall be received as evidence of any transaction affecting
an immovable property. As provided by Section 49 of the Registration Act,
any document, which is not registered as required under the law would be
inadmissible in evidence and cannot therefore be produced and proved under
Section 91 of the Evidence Act.
17. Even though recitals in the Ex.D22 is to the effect of
relinquishment of right in items No.1 and 2, Ex.D22 could be taken as
family arrangements/settlements. There is no provision of law requiring
family settlements to be reduced to writing and registered, though when
reduced to writing the question of registration may arise. Binding family
arrangements dealing with immovable property worth more than rupees hundred
can be made orally and when so made, no question of registration arises.
If, however, it is reduced to the form of writing with the purpose that the
terms should be evidenced by it, it required registration and without
registration it is inadmissible; but the said family arrangement can be
used as corroborative piece of evidence for showing or explaining the
conduct of the parties. In the present case, Ex.D22 panchayat resolution
reduced into writing, though not registered can be used as a piece of
evidence explaining the settlement arrived at and the conduct of the
parties in receiving the money from the defendant in lieu of relinquishing
their interest in items No.1 and 2.
18. Plaintiffs have denied the contention of the defendant that
plaintiffs No.3 and 4 have received consideration from the defendant in
lieu of relinquishing their claim for items No.1 and 2 of the suit
scheduled property. Contention of the plaintiffs is that all the brothers
have cultivated the suit property and have contributed towards the
development of the land belonging to their family and also contributed for
the construction of the house in item No.2 of the suit property. Plaintiff
No. 3 had produced Ex.P8 to P-29-M.O. receipts and acknowledgment cards
showing that the defendant received the amount sent under the money order
in the name of the defendant. Fourth plaintiff-Gopal had also deposed to
the same effect that he has not forfeited his claim in items No.1 and 2 of
the suit scheduled property and he has contributed in the construction of
the house in item No.2 of the suit scheduled property. Plaintiff No.4-Gopal
has also produced money order receipts Exs.P-33 to P-36 to show that he was
sending money to the defendant for cultivation of the land and also
produced Ex.P-30 and P-31 regarding purchase of building material. Money
order receipts produced by plaintiffs No.3 and 4 show that they have sent
money to the defendant. But the fact remains that mother of the plaintiffs
and defendant was residing with the defendant and she died in the year
1987. Money order could have been sent by plaintiffs No.3 and 4 for
maintenance of the mother. In fact, second plaintiff-Ananthaiah (CW2) has
stated that plaintiffs No.3 and 4 used to send small amount of money to
their mother when they were in the army. That being so, case of the
plaintiffs No.3 and 4 that the amount was sent only for development of land
and construction of the house ought not to have been accepted by the trial
court and the High Court.
19. As discussed earlier, when the terms of the family
settlement/arrangement between the parties have been reduced to writing, it
has to be registered. But in the facts and circumstances of this case and
the conduct of the parties, Ex.D-22 appears to record the family settlement
already arrived at between the parties. That Ex.D22-resolution was acted
upon is also supported by the subsequent conduct of the parties.
Plaintiffs No.3 and 4 retired from the army in 1988 and 1989 respectively.
In his evidence, third plaintiff-Lingappa has stated that after his
retirement he had purchased 1.00 acre of land in Thithimathi village and
that he had constructed a good house there. Third plaintiff has been
working as a watchman in the State Bank of Mysore at Hunsur and his wife
was working in the Family Welfare Department as a Warden and third
plaintiff was residing separate with his wife and family. Third plaintiff
had also admitted that he made an application to the Government for grant
of agricultural land to him in his capacity as ex-serviceman. Likewise,
fourth plaintiff had also purchased property in Kallubane and has
constructed his own house in Kallubane and living separate. Wife of fourth
plaintiff is working in Taluk Office and fourth plaintiff is living with
his family members.
20. It is pertinent to note that even though the plaintiffs No.3
and 4 have retired from the army in 1988 and 1989 respectively and were
living separate, they have not made any claim for partition. Their mother
died in 1987. The defendant has made an application for grant of item No.3
in his name in or about 1991, the tehsildar has issued proceedings for
regularization of item No.3 in the name of the defendant by his proceeding
dated 08.12.1995. The defendant has paid the T.T. fine of Rs.3489/- on
28.03.1996/31.05.1996. Only thereafter, the plaintiffs appear to have
filed the suit for partition. As noticed earlier, during the course of
trial, plaintiffs No. 1 and 2 stated that they have no claim or right in
the suit scheduled property in items No.1 and 2. The conduct of the
parties would also affirm that there was a division in status of the
defendant and the plaintiffs in so far as items No. 1 and 2 are concerned
which was affirmed in the panchayat. All these material facts and evidence
were ignored by the courts below and concurrent findings of courts on items
No.1 and 2 is to be set aside.
21. We are conscious that power under Article 136 of the
Constitution of India is to be exercised sparingly and only in furtherance
of justice. But where both the courts have mis-appreciated the evidence and
ignored the weight of evidence on record and findings suffer from
perversity, this Court would certainly examine whether the findings are
consistent with facts and evidence on record and interfere with the
conclusion. As held in Gujarat Mineral Development Corporation vs. P.H.
Brahmbhatt, (1974) 3 SCC 601:(1974) 2 SCR 128, where there is gross or
palpable error, the Supreme Court can also consider whether the finding is
wholly inconsistent with the material on record or whether the lower court
has dealt with the evidence in a perfunctory manner. In the present case,
courts below erred in ignoring the oral and documentary evidence adduced by
the defendant regarding items No.1 and 2 and the findings of the courts
regarding items No.1 and 2 are palpably erroneous and the same is to be
reversed.
22. So far as item No.3 in S.No.69/5C2 measuring 1.00 acre, case of
defendant is that Saguvali Chit (patta) was granted to him and item No.3 is
his self-acquired property. For item No.3, defendant gave application for
grant of patta on 08.08.1989 and again submitted another application on
28.05.1991. By the proceedings of Tehsildar dated 08.12.1995 under Rule 108
of Karnataka Land Revenue (Amended) Rule of 1991, patta of item No.3 was
granted in favour of the appellant subject to the conditions thereon and
also subject to payment of T.T. fine imposed on the said land. The
appellant paid T.T. fine of Rs.3489/- vide chalan dated 28.03.1996 which
was acknowledged by the authorities on 31.05.1996. Thereafter Saguvali Chit
(patta) was granted to the appellant on 19.06.1997, long after filing of
the suit. DW-6-SDA in Taluk Office has produced the records pertaining to
the grant of patta for item No.3 in favour of the defendant. Defendant
has brought on record evidence that villagers have raised objections for
grant of patta of item No.3 to the defendant and the defendant is said to
have paid Rs.1000/- to the villagers. In this regard, defendant has
examined DW-4-C.B.Muthappa who is working as a Chairman of the Seva Sahkara
Sangha of Kanoor village who has produced Ex.D33-the resolution book which
contains the resolution to the effect that the sum of Rs.1000/- was paid by
the defendant as fine. The documents would show that Saguvali Chit (patta)
for suit item No.3 was granted to the defendant on 19.06.1997 subsequent to
the filing of the suit.
23. Case of the defendant is that since Saguvali Chit (patta) was
granted to him, item No.3 is his self-acquired property. Rejecting the
contention, courts below recorded the findings that the defendant had not
established that the amount of T.T. fine paid by him was from his earnings
and no evidence was adduced to show his source of income. Placing reliance
upon Thimmegowda vs. Siddegowda ILR 1991 Karnataka 4506, trial court held
that item No.3 is the joint family property of the plaintiffs and the
defendant.
24. Refuting defendant’s contention, plaintiffs have stated that
even during the lifetime of their father-Narayana, he was in possession of
item No.3 and the whole family contributed for the development of item
No.3. In his evidence DW-2-C.D.Annaiah has stated that during his
lifetime Narayana was cultivating item No.3. Likewise, plaintiff No.1-
Vittala had also stated that item No.3 of the suit scheduled property was
in the possession of their family during the lifetime of their father-
Narayana.
25. In his written statement defendant had averred that “………he out
of his own toil and sustained efforts encroached an area of 1.25 acre
bearing S.No.69/5C2 in the year 1962 and converted the same into wetlands
and revenue authorities had regularized his encroachment”. Father-Narayana
died in or about 1962. After the death of Narayana, admittedly, defendant
was running the family affairs. After death of Narayana, family must have
continued the cultivation of item No.3. The defendant cannot claim that he
had individually encroached upon item No.3 even in the year 1962 and was
cultivating the same in his individual capacity by his own exertion.
Evidence amply shows that possession and cultivation of item No.3 was by
the family and patta was granted in the name of the defendant and it is to
be held that the patta was granted for the benefit of the entire family.
26. As discussed earlier, there was division of status among the
brothers, the defendant and plaintiffs No. 3 and 4 during the year 1995 or
at the time when the defendant paid Rs.20,000/- to plaintiffs No.3 and 4
for relinquishment of their interest in items No.1 and 2 or on 18.03.1995
when before panchayat resolution (Ex.D22) was passed. As noticed earlier,
appellant had given the application for grant of patta of item No.3 in 1989
and the same was renewed in 1991 during which time there was no division of
status among the defendant and plaintiffs No.3 and 4. Since the grant of
item No.3 in the name of the defendant is for the benefit of the family,
trial court and the High Court rightly recorded the concurrent findings
that the plaintiffs are entitled to the share in item No.3.
27. So far as plaintiffs No. 1 and 2 are concerned, on receipt of
summons they did not appear before the trial court. They were summoned as
court witnesses and examined as CWs 1 and 2. So far as the share of
plaintiffs No.1 and 2 in item No.3, by perusal of evidence of CWs 1 and 2,
it appears that they have relinquished their interest only in items No. 1
and 2. As the grant of patta for item No.3 has been held to be for the
benefit of the family, plaintiffs No.1 and 2 are also held entitled for a
share in item No.3 and thus the plaintiffs and defendant are entitled to
1/5th share each in item No.3. First plaintiff-PW-1 in his evidence stated
that he is not interested in items No. 1 and 2. So far as item No.3, he
has stated that since item No.3 of the suit scheduled property was in
possession of their family during the life time of their father, he does
not know what to ask. Second plaintiff (CW-2) in his evidence has stated
that he is not interested in the share of the suit properties as the extent
is very small. When specifically being asked about item No. 3, CW2 has
stated that he is not interested in item No. 3 also. Though in their
evidence, plaintiffs No.1 and 2 have stated that they are not interested in
claiming share, they have not filed anything in writing that their shares
in item No.3 may be given to plaintiffs No.3 and 4 and also the defendant.
In such facts and circumstances, in our view, plaintiffs No. 1 and 2 are
entitled to a share in item No.3. However, at the time of final
decree/proceedings, it is open to plaintiffs No.1 and 2 to relinquish their
share in favour of either the defendant or plaintiffs No.3 and 4.
28. In the result, the judgment of the High Court of Karnataka
dated 20.03.2008 in R.F.A. No.805 of 1998 is set aside so far as suit
property items No.1 and 2 is concerned and respondents/plaintiffs’ suit for
partition of items No.1 and 2 is dismissed. So far as item No.3, impugned
judgment is modified and it is held that all the four
respondents/plaintiffs and appellant/defendant are entitled to 1/5 share
each in item No.3. Accordingly, the appeal is partly allowed. No order as
to costs.
….……………………..J.
(KURIAN JOSEPH)
..………………………..J.
(R. BANUMATHI)
New Delhi;
July 05, 2016
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