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2016 DIGILAW 758 (KER)

MAHALINGA BHAT v. BEDRADI THIRUMALESHWARA BHAT

2016-09-06

K.HARILAL, V.CHITAMBARESH

body2016
JUDGMENT : Harilal, J. The appellant is the plaintiff in O.S.120 of 1982 on the files of the Subordinate Judge's Court, Kasaragod. The said suit was one for partition, after setting aside Ext.A1 partition deed entered into between the 1st defendant and others and Ext.A2 sale deed executed by the 4th defendant in favour of defendants 7 to 13. The plaintiff is the son of the 4th defendant. The 'B' Schedule property originally belonged to Shankaranarayana Bhatta, the father of the 1st and 4th defendants and grandfather of the plaintiff. Defendants 2 and 3 are the wife and son of the 1st defendant and defendants 5 and 6 are the wife and son of the 4th defendant. Defendants 7 to 14 are the persons who had purchased the property allotted to the 4th defendant and others under Ext.A1 partition deed, by Ext.A2 sale deed. 2. The plaintiff and defendants 1 to 6 belonged to a joint Hindu undivided family governed by Hindu Mithakshara Law of Inheritance, till the passing of Act 30 of 1976 and thereafter, the property was held as tenants in common. Subsequently, they have partitioned the property by partition deed dated 22/06/1962 between defendants 1 and 4 on the one hand and one Erippady Bapunhi Haji on the other side. According to the plaintiff, after the said partition, the 1st defendant was managing the family, as the 4th defendant, the father of the plaintiff, was a man of poor intellect and not in a sound and disposing state of mind. Subsequently, the 1st defendant had brought about Ext.A1 partition deed, incorporating false and self-serving recitals and managed to clandestinely obtain the signature of the 4th defendant, exploiting his unsound mind. The plaintiff and the 6th defendant were minors on the date of Exts.A1 and A2. The 1st defendant's branch is allotted with 2/3rd share, instead of 1/2 share. The classification of property is false and division is unequal. Various debts shown in Ext.A1 partition deed are false and bogus. Ext.A2 sale deed executed in favour of defendants 7 to 13 is not true and genuine and is not supported by consideration. Thus, the partition brought about under Ext.A1 partition deed is unjust, unequal and inequitable. Hence, 'B' Schedule property is liable to be partitioned again after setting aside Exts.A1 and A2, for the reasons stated above, the appellant pleaded. 3. Thus, the partition brought about under Ext.A1 partition deed is unjust, unequal and inequitable. Hence, 'B' Schedule property is liable to be partitioned again after setting aside Exts.A1 and A2, for the reasons stated above, the appellant pleaded. 3. The 1st defendant contended that the claim for fresh partition is one without any bona fides. It is denied that the 4th defendant was a man of poor intellect and unsound mind. He was not a man of unsound mind from 1973 to 1979, as alleged by the plaintiff. He denied the entire allegations about the mismanagement of property. At the same time, he admitted the relationship and the law governing them in the matter of the disposition of property. Defendants 2 and 3 also endorsed the contention raised by the 1st defendant. The 4th defendant was set ex parte. Defendants 7 to 13 also denied the plaint allegations and contended that they are bona fide purchasers who had purchased the property, by Ext.A2 sale deed, for adequate consideration. 4. The prime question to be considered is, whether the trial court is justified in arriving at such a finding that Exts.A1 and A2 are not liable to be set aside as the plaintiff had failed to prove the alleged unequal and inequitable allotment of property under Ext.A1 partition deed and the alleged unsound mind of the 4th defendant at the time of execution of Exts.A1 and A2. 5. The basic contention on which the appellant had sought for setting aside Ext.A1 partition deed and Ext.A2 sale deed is that the appellant was a minor at the time of execution of Exts.A1 and A2 and his father, the 4th defendant, was inherently a man of poor intellect and weak mind and Ext.A1 partition deed was brought about exploiting that situation. Similarly, the 4th defendant was a man of unsound mind during the period from 1973 to 1979 and Ext.A2 sale deed was brought about during this period exploiting, the unsound mind of the 4th defendant. 6. It is not disputed that the appellant was a minor at the time of execution of Exts.A1 and A2 and the defendants 1 and 4 had brought about Exts.A1 and A2 during the period of his minority. It is pertinent to note that the appellant had no case that when Ext.A1 was executed, the 4th defendant was a man of unsound mind. It is pertinent to note that the appellant had no case that when Ext.A1 was executed, the 4th defendant was a man of unsound mind. Therefore, as regards Ext.A1, what remains to be considered is, whether the 4th defendant was inherently a man of poor intellect and weak mind at the time when Ext.A1 was executed. Absolutely, there is no evidence to show that the 4th defendant was inherently a man of weak intellect and poor mind. If that be so, Ext.A1 can be set aside and partition can be reopened, if the appellant succeeds in proving that the allotment made in Ext.A1 partition deed is unfair, inequitable and prejudicial to the interest of the minor. 7. It is contended that the property allotted to the 4th defendant's branch, as per Ext.A1, was lesser than the extent allotted to the defendants 1 and 3 together. According to the appellant, each branch is entitled to get half share equally. As rightly held by the trial court, the extent of property alone cannot be considered to determine the question whether the allotment is equitable or not. It is the value of the property that matters. It can be seen that the family house was allotted to the 4th defendant's branch and no house was allotted to the 1st defendant's branch. So, mere extent of property allotted to the 1st defendant's branch alone cannot be taken as a circumstance to show that the allotment is inequitable. In this context, it cannot be forgotten that the partition was effected by mutual agreement entered into between the parties with their open eyes. So, a slight difference, in extent, is always negligible only and the value of property allotted to each sharer is the determinate factor. 8. So, the question is, whether the partition is inequitable, in view of the value of the property. The value of the property allotted the 1st and 3rd defendants comes together Rs.1,13,665.60. But the value of the property allotted to the 4th defendant's branch comes together Rs.1,03,977.36 and the difference is Rs.9,688.24 only. 9. The plaintiff contended that Item No. 1 comprised in R.S.No.93-1 is an arecanut garden; but the Advocate Commission has taken it as paddy land only. But the value of the property allotted to the 4th defendant's branch comes together Rs.1,03,977.36 and the difference is Rs.9,688.24 only. 9. The plaintiff contended that Item No. 1 comprised in R.S.No.93-1 is an arecanut garden; but the Advocate Commission has taken it as paddy land only. If it is really an arecanut garden, the value of the property allotted to the 1st defendant's branch will be worth more to the extent of Rs.54,405.44 than the property allotted to the 4th defendant's branch, when they are entitled to equal share only. 10. So, the court below meticulously considered the question whether the property comprised in R.S.No.93-1 was an arecanut garden or not? The plaintiff contended that according to the remarks column of Ext.B3 partition deed dated 22/6/1962, the property comprised in R.S.No.93-1 was planted with arecanut. But the court below after examining the said remarks column, found that R.S.No.93-1 was not the only item which was the subject matter of Ext.B3. R.S.Nos.101-2 and 101-4 were also partitioned and the remarks column covers the property comprised in those Survey numbers also. In that view of the matter, the remarks column cannot be taken as a criterion to determine the nature of property comprised in R.S.No.93-1 at the time of Ext.B3, particularly when, in Ext.B3, R.S. No.93-1 is described as 'Nanja' i.e., paddy field. In Ext.B2 also the property comprised in R.S.No.93-1 is described as 'Nanja'. 11. It is true that in Ext.A9 Cultivation Register alone R.S.No.93-1 is referred to as arecanut plants. But, it is to be remembered that Cultivation Register is maintained for the purpose of calculating paddy cultivated in the property and also for assessing levy and is not intended for areca cultivation. The extent over which paddy cultivated alone is relevant in these Registers. So, Ext.A9 cannot be taken as a criterion to determine the nature of property comprised in R.S.No.93-1. Nobody has been examined to prove Ext.A9 or to explain recital in Ext.A9. In that circumstance, the court below is justified in not relying on Ext.A9 Cultivation Register to consider the property comprised in R.S.No.93-1 as arecanut garden. 12. It is also contended that the family was not assessed for levy; so, it can be an areca garden only. Nobody has been examined to prove Ext.A9 or to explain recital in Ext.A9. In that circumstance, the court below is justified in not relying on Ext.A9 Cultivation Register to consider the property comprised in R.S.No.93-1 as arecanut garden. 12. It is also contended that the family was not assessed for levy; so, it can be an areca garden only. But, it is pertinent to note that the extent of paddy land was just about 2 Acres only and thereby, the property might have fallen, below the required extent to assess levy. So, the lack of materials to show assessment or grant of levy cannot be taken as a circumstance to arrive at a finding that the property comprised in R.S.No.93-1 is an arecanut garden. Thus, it could be seen that the plaintiff has miserably failed to prove that the property comprised in R.S.No.93-1 is an arecanut garden. If the property comprised in R.S.No.93-1 is a paddy land, the total value of the property allotted to the defendants 1 to 3, is in excess of Rs.9,688.24 only, than the value of the property allotted to the 4th defendant's branch. 13. In calculating the value of shares allotted to the parties in Ext.A1, the debt allotted to each sharer also has to be considered and value of share has to be taken, after deducting the value of debt. In Ext.A1, the debt allotted to defendants 1 to 3 together is Rs.43,043.71; whereas the value of the property allotted to defendants 1 to 3 together is Rs.1,13,665.60. So, after deducting the debt, the value of the property allotted to defendants 1 to 3 is Rs.70,630.89; whereas the value of the property allotted to the 4th defendant's branch, after deducting the debt, is Rs.86,997.65. So, it can be seen that the value of share allotted to the 4th defendant's branch was higher than the value of share allotted to the 1st defendant's branch. 14. Even though the plaintiff contended that various debts mentioned in Ext.A1 are bogus, such bogus transactions are not specifically mentioned in the plaint, except Exts.X4 ands X5. The court below examined the question whether Exts.X4 and X5 are genuine transactions or not. Ext.X4 is a simple mortgage deed executed in favour of D.W.2 and Ext.X5 was executed by defendants 1 to 4 in favour of the mother of D.W.2 for an amount of Rs.10,000/-. The court below examined the question whether Exts.X4 and X5 are genuine transactions or not. Ext.X4 is a simple mortgage deed executed in favour of D.W.2 and Ext.X5 was executed by defendants 1 to 4 in favour of the mother of D.W.2 for an amount of Rs.10,000/-. Indisputably, Exts.X4 and X5 were executed before 1973. 15. According to the plaintiff, the 4th defendant was a man of unsound mind from 1973 to 1979 only and Exts.X4 and X5 were executed before 1973. As noted earlier, there is no evidence to show that the 4th defendant was inherently a man of weak mind. Thus, it could be seen that Exts.X4 and X5 were executed by the 4th defendant also, when he was a man of sound mind. Moreover, in this suit, the 4th defendant was set ex parte and he was not examined as a witness to prove the bogus nature of transactions in Exts.X4 and X5. No explanation was given for non-examination of the 4th defendant. On the other hand, D.W.2 deposed that Exts.X4 and X5 are bona fide transactions and Ext.X4 debt is seen to have been borrowed for discharging the loan taken for purchasing Exts.B1 and B2 properties and also for providing irrigation facilities to the family property. 16. As regards Ext.X5, it has come out in evidence that Ext.X5 mortgage deed was executed to discharge the liability when execution proceedings were initiated against the members of the family, under O.S.No.31/1969 and O.S.No.52/1970, for recovery of the owelty amount. Thus, the court below is justified in finding that Exts.X4 and X5 are not bogus transactions. Even if those debts were borrowed by the 4th defendant in his individual capacity and not for the benefit of the plaintiff, he has the pious obligation to discharge that debt, as those debts are binding on him. 17. In the above analysis, the court below is justified in finding that Ext.A1 partition deed is not inequitable or unfair or prejudicial to the plaintiff. 18. The next point to be considered is, was the 4th defendant a man of unsound mind at the time of execution of Ext.A2? 19. 17. In the above analysis, the court below is justified in finding that Ext.A1 partition deed is not inequitable or unfair or prejudicial to the plaintiff. 18. The next point to be considered is, was the 4th defendant a man of unsound mind at the time of execution of Ext.A2? 19. Coming to the challenge against Ext.A2 sale deed, the main ground is that the 4th defendant was a man of unsound mind and the appellant was a minor at the time of execution of Ext.A2 and exploiting the said unsound mind of the 4th defendant, Ext.A2 sale deed was got fraudulently executed in favour of defendants 7 to 13. It is true that Ext.A2 was executed on 4/10/1976 i.e., between 1973 and 1979. Admittedly, the 4th defendant remained ex parte in the suit and no written statement was filed by him. No satisfactory explanation was forthcoming for the non-examination of the 4th defendant. According to the plaintiff, P.W.2, the maternal uncle of the plaintiff, was managing the properties for sometime and thereafter, the 5th defendant, the mother of the plaintiff, was managing the properties, due to the 4th defendant's incapability caused by his unsound mind. But, neither the 5th defendant was examined; nor was any satisfactory explanation given for the same. That apart, the first attestor to Ext.A2 sale deed was the brother of the 5th defendant i.e., the maternal uncle of the plaintiff. So, it is improbable that he joined along with the 1st defendant to defeat the right of the plaintiff, exploiting the unsound mind of the 4th defendant. 20. Admittedly, Ext.B23 rectification was also executed by the 4th defendant for correcting the mistake in the door number of the house shown in Ext.A2. That apart, after Ext.A2, as per Ext.B34, the 4th defendant had purchased another property and subsequently, he sold away that property by Ext.B35. The share of purchase money due to the 6th defendant and the plaintiff, who were minors at the time of Ext.A2, was reserved as per Ext.A2 and interest on the said unpaid purchase money seems to have been received by the 4th defendant and the receipt for the same was given to defendants 7 to 13. The share of purchase money due to the 6th defendant and the plaintiff, who were minors at the time of Ext.A2, was reserved as per Ext.A2 and interest on the said unpaid purchase money seems to have been received by the 4th defendant and the receipt for the same was given to defendants 7 to 13. Thus, it could be inferred from the above mentioned transactions that the 4th defendant had applied his mind in each transaction and more particularly, he had taken much care and caution to protect the interest of the minors by making reservation in Ext.A2 in respect of their rights. 21. On the other hand, Exts.X1 and X2 are the documents relied on by the plaintiff to show that the 4th defendant was a man of unsound mind during the period from 1973 to 1979. Ext.X1 is an application for Transfer Certificate of her son filed by the 5th defendant. An application for Transfer Certificate of a student can be filed either by his father or mother. So, merely on the reason that the said application was filed by the wife when the husband was alive, it can never be presumed that the husband is a man of unsound mind. Ext.X2 is a paper publication made by the 5th defendant stating that the 4th defendant was a man of unsound mind and if sale deed was got executed from him, the same would not be binding on her. Even though the newspaper agent was examined, his evidence goes to the extent that the news item was entrusted to him for publication by the 5th defendant and she had paid the charges for the same. This Court is also of the opinion that the said publication is a self-serving document and no inference can be gathered that the person referred to in the publication is actually a man of unsound mind. P.W.4, local agent of the newspaper, has not given evidence to the effect that before making such a publication, he has verified the genuineness of the contents of the publication. In short, Ext.X2 paper publication cannot be taken as a testification of the alleged unsoundness of the 4th defendant. 22. It is also contended that the 1st defendant has filed a counter affidavit in E.P.No.40/1983 in O.S.No.39/1970 stating that the 4th defendant was a man of unsound mind during the period of 1973. 23. In short, Ext.X2 paper publication cannot be taken as a testification of the alleged unsoundness of the 4th defendant. 22. It is also contended that the 1st defendant has filed a counter affidavit in E.P.No.40/1983 in O.S.No.39/1970 stating that the 4th defendant was a man of unsound mind during the period of 1973. 23. As rightly held by the court below, the contentions raised by the 1st defendant in another proceedings cannot be taken as his admissions in the present proceedings and no reliance can be placed on those contentions in another proceedings without considering the facts and circumstances involved in that case and the aforesaid view is supported by the decision of this Court in Narayana Pillai and Another v. Kesava Pillai and Others [1962 KLJ 389]. Thus, the court below is justified in rejecting Ext.A11 certified copy of the counter filed by the 1st defendant in E.P.No.40/1983. 24. As rightly observed by the court below, no reliance can be placed on the evidence of P.W.2, who is in inimical terms with the 1st defendant as well as the defendants 7 to 13. P.W.3 was examined as an Ayurvedic Doctor, who treated the 4th defendant for his unsound mind. But, in cross-examination, it has come out in evidence that he is a man without any basic qualification and he doesn't know any kind of Ayurvedic treatment. Hence, no reliance can be placed on his evidence also to prove the alleged unsoundness of the 4th defendant. 25. To sum up, even though the evidence adduced by the plaintiff is, in abundance, the entire evidence is not worthy of any credit and the court below is justified in rejecting the evidence in toto adduced by the plaintiff. In this respect, it follows that the plaintiff has miserably failed to prove that during the period between 1973 and 1979, the 4th defendant was a man of unsound mind and exploiting that situation, the plaintiff and the defendants 7 to 13 got executed Ext.A2 sale deed. 26. The next point to be considered is, whether there was any legal necessity compelling the 4th defendant to sell the property, by Ext.A2 sale deed? 26. The next point to be considered is, whether there was any legal necessity compelling the 4th defendant to sell the property, by Ext.A2 sale deed? Ext.A2 was executed for a consideration of Rs.30,000/- and out of that amount various amounts, including unpaid consideration due to the minors, plaintiff and the 6th defendant, were reserved with defendants 7 to 13 and later, the said reserved amounts were paid under Exts.B24 to B34. The aforesaid documentary evidence unequivocally prove that Ext.A2 sale deed was executed by the 4th defendant to avert the sale of the property and also to discharge other debts for which either suit was filed or E.P. was filed in execution or suit is likely to be filed. We also endorse the finding of the court below that such transactions made with an intent to discharge the liability and save the property could be expected from a prudent and sensible person only. In that view, no way it can be held that the 4th defendant was a man of unsound mind at the time of execution of Ext.A2 sale deed. That apart, Exts.B24 to B34 disprove the case of the plaintiff that the 4th defendant was a man of unsound mind. 27. Even though it was contended that consideration shown in Ext.A2 is inadequate, no evidence was forthcoming to substantiate any possibility to get more consideration. Exts.B24 to B34 show that the property was sold under the pressing necessity and in such a situation, it was not possible to get maximum price, as the seller had lost the bargaining capacity. 28. To sum up, the plaintiff has miserably failed to prove that the 4th defendant was a man of unsound mind at the time when Ext.A2 sale deed was executed and the 1st defendant and others succeeded in proving that there was a pressing legal necessity compelling the 4th defendant to sell the property and the consideration of the same is adequate in view of the circumstances surrounding the family prevailing at that time. It follows that the plaintiff has miserably failed to prove the grounds stated to set aside Ext.A2 sale deed. On a total analysis of the evidence on record, the court below is justified in dismissed the plaint. This appeal is dismissed with costs.