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2013 DIGILAW 1146 (KAR)

Monakka Shinde v. Maruti Shinde

2013-09-23

S.N.SATYANARAYANA

body2013
JUDGMENT S.N. Satyanarayana, J. 1. Plaintiff in O.S. No. 370/2004 on the file of I Additional Civil Judge (Junior Division), Belgaum, has come up in this second appeal impugning the judgment and decree dated 13/01/2012 passed in Regular Appeal No. 117/2010 on the file of Principal District Judge, Belgaum, wherein the judgment and decree dated 07/01/2010 in O.S. No. 370/2004 on the file of I Additional Civil Judge (Senior Division), Belgaum, in granting decree and 1/3rd share to plaintiff in the suit schedule properties is set aside and suit of the plaintiff is rejected. In effect, this appeal is challenging the divergent finding rendered by lower appellate Court. 2. In this appeal, the parties to the proceedings are referred by their rank in the original suit for the sake of convenience and brief facts leading to this second appeal are as follows: Plaintiff is step mother of first defendant and biological mother of second defendant who are sons of plaintiff and her husband Somnath Shinde. The fact that plaintiff's husband Somnath Shinde was earlier married to one Smt. Sundrabai @ Ningu is not in dispute. In the said wedlock, Sundraibai @ Ningu had begotten one son i.e. first defendant in the original suit. It is seen from records that when first defendant was aged about 6 months, his mother Sundrabai @ Ningu died resulting in Somnath Shinde taking second wife by name Krishna Bai. That marriage between Krishna Bai and Somnath Shinde resulted in divorce and thereafter he married the plaintiff Smt. Monakka as his 3rd wife. It is also on record that in the marriage with Somnath Shinde, Monakka begot the second defendant her only issue and records would disclose that father-Somnath Shinde, mother-Monakka and their two children were all living together till the death of Somnath Shinde in the year 1979. After the death of Somnath Shinde, all the property that stood in the name of Somnath Shinde and as well as in the name of plaintiff Smt. Monakka continued to be the property of joint family consisting of herself and her two sons namely first and second defendants, which is not disputed by any of the parties. 3. When the matter stood thus, it is seen that first defendant took up Government Service as Police Officer. 3. When the matter stood thus, it is seen that first defendant took up Government Service as Police Officer. Since 1966 and the second defendant who is about 10-12 years younger to first defendant started running printing press and also engaged in local politics and contested in the election of corporator and did all unwanted things besides continuing his business. It is also on record that the relationship between the parties were cordial until it came to the stage of filing of the present suit on the ground that in the year 2002, defendants 1 and 2 together approached the plaintiff and represented to her that they are dividing the suit schedule properties between three of them assuring a portion to her and they also assured that a sum of Rs. 50,000/- would be given for her maintenance besides a share in the suit schedule properties and while stating so, they presented a partition deed took her signature on the last sheet to the document and took her to Sub Registrar's office to get the document registered. Though she was assured that a share in the suit schedule properties and a sum of Rs. 50,000/- will be given, it is stated by the plaintiff that neither Rs. 50,000/- was given nor she was informed what was the property that was given to her share. 4. However, in the year 2004, i.e., two years after the partition deed which is produced and marked as Ex.D-1 in this proceedings, difference between herself and her two sons started wherein both of them tried to throw her out of the family house in which she was living. When there was an attempt to throw her out of the family stating that she has no share in the suit schedule properties, with the help of her relatives, she was able to secure the certified copy of the partition and found that no share was allotted to her as assured while getting her signature on the partition deed and that though there was reference of Rs. 50,000/- having been paid to her, no money had been passed on to her right from the date of execution of Ex.D-1 till filing of a suit and this necessitated her to file suit in O.S. No. 370/2004 for the relief of declaration that the partition deed dated 09/10/2002 entered into between the plaintiff and defendants is obtained by fraud and hence the same is null and void and is not binding on the plaintiff and also seeking for partition to divide suit schedule properties between plaintiff and defendants by awarding 1/3rd share to the plaintiff and restrain defendant No. 1 from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule properties which she claim that she is in joint possession along with defendants 1 and 2, and also sought for costs of the proceedings. 5. In the said suit, after service of notice, first defendant entered appearance and filed a lengthy written statement wherein he started denying all the plaint averments including name of his mother and also status of the plaintiff and that the suit properties are not properties which are acquired by the plaintiff from out of the savings from business in addition to agricultural activity and he set up a defence that all the suit schedule properties were properties which were acquired with the income of his father and also that of his paternal grand mother Smt. Dhudhakka and that the suit properties are not properties which are earned by her and he also denied that he mislead the plaintiff that the suit schedule properties are divided between herself and her two sons in giving 1/3rd share to her. He also reiterated that under the partition deed what was agreed was with the knowledge of the plaintiff and the properties which are standing in the name of plaintiff and his father is from out of the income of his father Somnath Shinde and that of his grand mother and also from out of the income which he earned as an officer of the Police Department and in which she was given Rs. 50,000/- for maintenance. 6. 50,000/- for maintenance. 6. In the written statement filed by second defendant, he stated that the manner in which partition deed was effected and it was agreed was at the instance of the first defendant who is 10 years elder to him and partition deed was got prepared by 1st defendant and the same was secured in the presence of two witnesses i.e. DWs-2 and 3 who are none other than the friends of Somanath Shindhe. He further state that defendant No. 1 while executing partition deed dated 09/10/2002 had assured that out of the share that he has taken includes the share that is due to the plaintiff and that he would provide share due to the plaintiff and also he would pay to her a sum of Rs. 50,000/- from out of his pocket and therefore he does not know whether such money was paid or not. 7. With these rival pleadings of plaintiff, first and second defendant, the trial Court framed the following issues: 1. Whether the plaintiff proves that partition deed dated 9-10-2002 is obtained by acting fraud and misrepresentation on her and it is null, void and not binding her? 2. Whether plaintiff is entitled for reopening of partition? 3. Whether defendant No. 1 proves that C.F. paid is insufficient? 4. Whether plaintiff is entitled for decree? 5. What decree or order? In respect of the issues that were framed, first plaintiff entered witness box and adduced evidence virtually reiterating the plaint averments and to demonstrate that many of the suit properties were standing in her name and the same were acquired from out of her income. She produced in all 9 documents which are Exs.P-1 to P-9. Out of that Exs.P-1 and P-2 are CTS extracts of agricultural lands, Ex.P-3 is the-C.T. Map, Ex.P-4 is RTC extract, Ex.P-5 is survivorship certificate and Exs.P-6 to P-9 are the sale deeds of the properties purchased in her name. On behalf of the defendants, first defendant examined himself as DW-1 and he relied upon the partition deed which was produced and marked as Ex.D-1. He examined two witnesses as DWs.2 and 3 who are attesting witnesses to Ex.D-1. DW-4 is one Sri. S.T. Pujari-tenant in one of the suit schedule properties at Kadbad Galli, Belgaum. 8. The trial court on appreciation of the oral and documentary evidence available on record proceeded to answer issue Nos. He examined two witnesses as DWs.2 and 3 who are attesting witnesses to Ex.D-1. DW-4 is one Sri. S.T. Pujari-tenant in one of the suit schedule properties at Kadbad Galli, Belgaum. 8. The trial court on appreciation of the oral and documentary evidence available on record proceeded to answer issue Nos. 1 and 2 which were framed to consider whether plaintiff prove partition deed dated 09/10/2002 is obtained by fraud and misrepresentation against plaintiff and that the same is null and void, is held in affirmative in favour of the plaintiff. So far as second issue regarding right of plaintiff seeking reopening of partition was also held in the affirmative. So far as 3rd issue which was based on the pleadings of first defendant to the effect that court fee paid by the plaintiff is insufficient, is held in the negative holding that court fee paid is just and proper. So far as 4th issue which is in connection with issue Nos. 1 and 2 to decide whether plaintiff is entitled to decree as contended, was answered in the affirmative and consequently, suit of the plaintiff is decreed granting 1/3rd share for the reason that all the properties which are standing in the name of the plaintiff and as well as her husband are the joint family properties in which the plaintiff i.e. the widow of Somnath Shinde and defendants 1 and 2-children of Somanth Shinde are entitled to 1/3rd share each and accordingly, held that plaintiff is entitled to 1/3rd share in all the suit schedule properties and decreed the suit of the plaintiff with costs. First defendant in the original suit being aggrieved by the judgment and decree dated 07/01/2002 passed in O.S. No. 370/2004 decreeing the suit and granting 1/3rd share to the plaintiff, preferred an appeal in R.A. No. 117/2010 on the file of Principal District Judge, Belgaum. 9. In the said regular appeal, defendant No. 1 filed two applications one for amending the written statement in the original suit and for production of documents. It is seen that the said applications were opposed by the plaintiff who was first respondent in the said proceedings and not by the second defendant who is second respondent in the said proceedings. In the said regular appeal, defendant No. 1 filed two applications one for amending the written statement in the original suit and for production of documents. It is seen that the said applications were opposed by the plaintiff who was first respondent in the said proceedings and not by the second defendant who is second respondent in the said proceedings. Amendment of the Written statement is to the effect that the agreement that is arrived at between first and second defendant in sharing income of the suit schedule properties and also the income tax returns of the first defendant to show his income and other needs. Since the said amendment would not affect right of plaintiff, the lower appellate court permitted the appellant-first defendant in the original suit to amend the written statement and also permitted him to produce the documents which he try to rely upon in support of his case. Incidentally, it is seen that though these two applications were allowed and documents were taken on record, no option was given to the appellant to get them marked and rely upon the same and no opportunity was given to the first respondent i.e. plaintiff in the original suit to challenge the said documents. 10. However based on the amended written statement in the original suit and based on the original documents, the lower appellate court proceeded to frame the following points for consideration: 1. Is the learned trial Judge right in holding that the deed of partition Ex.D-1 was brought out by defendants 1 and 2 by practicing fraud on plaintiff and by misrepresentation? 2. Is the learned trial Judge justified in decreeing the plaintiff's suit? 3. Is it necessary to permit the 1st defendant/appellant to amend the written statement? 4. Are the documents which are sought to be now produced by ways of additional evidence by appellant, require for a just decision of the case? 5. What order? Thereafter, proceeded to hear the appellant-first defendant in the original suit and also respondent Nos. 1 and 2 who are plaintiff and second defendant in the original suit. On appreciation of the oral and documentary evidence available on record with reference to the findings of the trial Court on issues 1 to 5 and also on the finding of the trial Court proceeded to answer all the points for consideration i.e. 1 to 5 in the negative. 11. On appreciation of the oral and documentary evidence available on record with reference to the findings of the trial Court on issues 1 to 5 and also on the finding of the trial Court proceeded to answer all the points for consideration i.e. 1 to 5 in the negative. 11. It is seen that the first point for consideration is to consider whether the trial court was right in holding partition deed Ex.D-1 was brought about by defendants 1 and 2 by practicing fraud on plaintiff and by misrepresentation was held in the negative and set aside the finding of the trial Court that there was fraud and misrepresentation committed by defendants 1 and 2 against the plaintiff. Second point was answered in the negative holding that the trial Judge was not justified in decreeing the suit of the plaintiff and so far as the third point for consideration regarding right to amend written statement was considered in his favour and also point No. 4 regarding giving permission to first defendant for production of additional documents and in the consequence, the lower appellate court set aside the judgment and decree of the trial court and consequently dismissed the suit of the plaintiff by accepting that the partition deed dated 09/10/2002 as legal, valid and binding on the plaintiff and defendants 1 and 2 and no fraud was committed for the reason that it was a registered document as such question of fraud being committed on the plaintiff does not arise and that the suit of the plaintiff is without basis in the light of the documents which were relied upon by the appellant in the form of income tax return and other documents and that there is no justification in holding document at Ex.D-1 is a fraudulent document. Being aggrieved by the same, plaintiff in the original suit has come up in this second appeal. 12. In this second appeal, on going through the grounds of appeal and as well as the findings of both the courts below in reversing the judgment and decree passed by the trial Court, this court framed the following substantial questions of law: 1. Whether the lower appellate Court was justified in setting aside the judgment and decree passed by the trial Court without considering the manner in which Ex.D.1-Deed of Partition is registered? 2. Whether the lower appellate Court was justified in setting aside the judgment and decree passed by the trial Court without considering the manner in which Ex.D.1-Deed of Partition is registered? 2. Whether the lower appellate court was justified in holding that no fraud is committed by defendants 1 and 2 against plaintiff in execution of Ex.D.1-Deed of Partition wherein some of the properties subjected to partition were absolute properties of plaintiff? Heard the learned counsel for the appellant and as well as counsel for the second respondent in the original suit. So far as first respondent who is first defendant in the original suit and appellant in the lower appellate Court is concerned, though he is duly served, he did not appear and contested this appeal. On going through the pleadings, oral and documentary evidence with reference to the finding of the lower appellate Court and the trial Court, this court in the back ground of the substantial questions of law which are framed, answer the substantial questions of law in the negative for the following: REASONS 13. In this second appeal, the plaintiff who knocked the door of the trial Court for the relief of partition of suit schedule properties most of which are standing in her name though succeeded initially in getting a decree of 1/3rd share was put in the original position by judgment and decree passed by the lower appellate Court in up holding the contentions urged by first defendant in the original suit thereby allowing his appeal and set aside the judgment and decree of the trial Court. In the bargain, the plaintiff, who is now at the ripe age of 76 years as on 2012 is now made to agitate for her rights in this second appeal. It is a pathetic case of an elderly lady in knocking the doors of justice. The appellant who is plaintiff in the original suit is widow of Somnath Shinde who is biological father of defendants 1 and 2 and husband of plaintiff Smt. Monakka is not in dispute. It is also not in dispute that the first defendant is step son of Monakka and son born to Somanth Shinde through his first wife and second defendant is son of Monakka and Somnath Shinde is also not in dispute. It is also not in dispute that the first defendant is step son of Monakka and son born to Somanth Shinde through his first wife and second defendant is son of Monakka and Somnath Shinde is also not in dispute. It is unbelievable that first defendant, a responsible police officer is not willing to part with share due to plaintiff in the suit schedule properties which are joint family properties. It is surprising that the second defendant though appears to support his mother, has clandestinely supported his brother in joining hands with him in getting the document prepared as if it is legal and enforceable partition in not granting share due to plaintiff for which she is entitled to. 14. The material available on record would show that out of the 7 suit schedule properties 4 were standing in the name of plaintiff and 3 are joint family properties. No doubt that if 4 properties are standing in the name of the plaintiff remaining 3 properties are in the name of her husband, they are all joint family properties, some properties may be purchased by husband of plaintiff and others by children i.e. defendants 1 and 2, but nevertheless the fact remains that plaintiff being the widow of Somnath Shinde and mother of defendants 1 and 2 is entitled to 1/3rd share in all the properties. However, the document which is available on record in the form of partition deed as Ex.D-1 would clearly disclose that major portion of the properties is taken away by defendant No. 1 and remaining by defendant No. 2 and though there is reference to sum of Rs. 50,000/- being given to plaintiff for her maintenance in her old age, the records would clearly disclose that not a single pie is parted from defendants 1 and 2 in favour of the plaintiff. Though first defendant averred that he has paid Rs. 50,000/- in favour of his mother in the presence of DWs 2 and 3 who are witnesses to Ex.D-1, the document in Ex.D1 does not support the same. Second defendant who is none other than biological son of plaintiff convincingly state that plaintiff's share is taken by 1st defendant on the assurance that in due course it will be given to her. In addition, it is also stated that Rs. Second defendant who is none other than biological son of plaintiff convincingly state that plaintiff's share is taken by 1st defendant on the assurance that in due course it will be given to her. In addition, it is also stated that Rs. 50,000/- referred in the partition deed will also be paid by 1st defendant to plaintiff. It is seen that second defendant in his greed has joined his elder brother first defendant and tried to support the claim of first defendant contending that he had agreed to pay the entire money. Therefore, he does not know whether money is paid or not and in their game plan what is received by the defendant is a big zero. Be that as it may. 15. The material on record would disclose, the fact that plaintiff and defendants are the members of joint family of which Somnath Shinde was propositus is not in dispute. It is also not in dispute that all the 7 suit schedule properties are the properties of joint family in which plaintiff has 1/3rd share as rightly observed by the trial Court. It is further not in dispute that the partition deed which is executed and registered on 09/10/2002 bear the thumb impression of the plaintiff Smt. Monakka on the last page of the document i.e. page No. 50. Incidentally and also surprisingly, on all the pages of the document-Ex.D1 signature of the plaintiff and defendants are missing. In other words, the execution of the document is not complete. Signature of defendants 1 and 2 is seen only where some corrections are carried out against that, signature of plaintiff is excluded and it is seen that on the back side of page No. 2, thumb impression of the plaintiff is secured as one of the presenters of the document along with her two sons but the evidence would clearly disclose that the plaintiff was not taken into confidence while preparing document Ex.D-1 which is prepared behind the back of the plaintiff in collusion between defendant No. 1 and defendant No. 2. 16. 16. Though in some places defendant No. 1 tried to put the blame on defendant No. 2 that he is the biological son of plaintiff hence joined together and tried to cheat him, in other place defendant No. 2 would say defendant No. 1 being elder brother prevailed upon him to execute the document with an assurance that by giving a share in the suit schedule property will take care of his interest and will also pay compensation to plaintiff in monetary terms and as well as interest of the suit schedule property. The entire evidence and material on record would clearly disclose that defendants 1 and 2 are liars and tried to cheat their mother-plaintiff and tried to knock the entire property without showing any share to her in the said document for which she was legally entitled to. As stated supra, the document is not properly executed. It does not explain regarding her right to suit schedule properties and the legitimate share she is entitled to in the suit properties and also regarding extent of share i.e. provided though in the document there is reference of a share being given to plaintiff, there is nothing on record to show that. 17. In fact a sum of Rs. 50,000/- is shown to be given as a share. There is nothing on record that such payment is made. Section 58(c) of the Registration Act reads as under: 58. Particulars to be endorsed on documents admitted to registration: (a) xxxx (b) xxxx (c) any payment of money or delivery of goods made in the presence of the Registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution. Which is supported by rule 103 of the Act which reads as under: 103. Payment of consideration mentioned in the document i) When the amount of consideration mentioned in a document presented for registration is paid before the Registering officer, the signatures of the payer and of the payee shall be obtained below the endorsement of payment (ii) when the consideration is paid before the Registering officer in currency notes and any party to the transaction desire that the numbers of the notes shall be noted in the endorsement, the request shall be complied with. (iii) When money is paid on behalf of the claimant by his agent, messenger or servant, the words "on behalf of the claimant" with the name of the claimant shall be added after the name of the payer in the endorsement. (iv) The Registering Officer shall not endorse an admission of receipt of consideration unless the admission is voluntarily made. (v) If a person executing a document admits that he has executed it but denies receipt of consideration either in whole or in part, the Registering officer shall not refuse to register the document on that account but he shall make a note of such denial in the endorsement. (vi) in case where the document recites that a payment is to be made in the presence of the Registering Officer but no such payment is made or the payment made does not agree with the recitals of the deed, the registering officer should question the executants and note the result in the endorsement. The record of such enquiry should be brief and unambiguous but such as would remove the apparent discrepancy in the recitals of the deed and the payment actually made before the Registering officer. Further on going through document Ex.D-1 it is clearly seen that there is error on the part of the sub-registrar in not complying with his duties as enunciated under Rule 73 of the Karnataka Registration Rules which reads as under: 73. Duties of the Registering officer: (i) It shall form no part of the Registering Officer's duty to enquire into the validity of a document brought to him for registration or to attend to any written or verbal protest against the registration of a document, provided execution is duly admitted; but in case of executants who are unable to read, the document shall be read out and if necessary explained to them. If the document is in a language which they do not understand it must be interpreted to them. 18. In the present case it is clearly seen that no payment is made in the presence of sub-registrar as contended by the first defendant and also DWs.2 and 3. It is further seen that when there are 7 items of properties, not even one item of property or any share therein is provided to the plaintiff in the said partition deed except a paltry sum of Rs. It is further seen that when there are 7 items of properties, not even one item of property or any share therein is provided to the plaintiff in the said partition deed except a paltry sum of Rs. 50,000/- which is said to have paid, which is actually not paid. In that view of the matter, the finding of the trial Court holding that the said document is obtained by fraud committed by defendant Nos. 1 and 2 cannot be ruled out. However, on going through the judgment of the lower appellate Court, it is clearly seen that the lower appellate Court has grossly erred in reappreciating the oral and documentary evidence available on record and is mislead by the contents of amendment to the written statement and the documents which has no nexus to deny share to plaintiff in suit schedule properties. 19. In the said amendment and also by way of additional document what is being tried by the first defendant-appellant before the lower appellate court is to substantiate certain arrangements that is agreed between himself and 2nd defendant in respect of the suit schedule properties in sharing the income and other things which does not show the manner in which the interest of plaintiff is protected in providing 1/3rd share to plaintiff in the suit schedule properties. In fact the entire additional written statement and document which are relied upon by the first defendant in the original suit, in no way supports his grounds that are urged by him in the lower appellate court to set aside the judgment and decree passed by the trial Court. The finding of the lower appellate court believing and accepting the same has resulted in gross injustice being caused to the plaintiff by taking away the rightful share that was granted to her by the trial court on proper appreciation of the pleadings and evidence available on record. 20. The finding of the lower appellate court believing and accepting the same has resulted in gross injustice being caused to the plaintiff by taking away the rightful share that was granted to her by the trial court on proper appreciation of the pleadings and evidence available on record. 20. In that view of the matter by answering substantial questions of law framed in the negative, this court would allow the second appeal filed by the plaintiff in O.S. No. 370/2004 by setting aside the judgment and decree passed in R.A. No. 117/2010 on the file of Principal District Judge, Belgaum, and consequently restoring the judgment and decree granting 1/3rd share to the plaintiff in O.S. No. 370/2004 passed by the I Additional Civil Judge (Senior Division), Belgaum and consequently permitting her to initiate final decree proceedings to get her 1/3rd share in all the suit schedule properties leaving 2/3rd to defendants 1 and 2 to share the same equally.