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2023 DIGILAW 604 (KAR)

Vijaya Kumar Mahantappa Walasang v. Gurusiddappa

2023-04-17

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - These appeals namely RSA.NO.100558/2015 and RSA.No.1253/2008 are heard together and disposed of by common judgment. 2. RSA.No.100558/2015 is arising from judgment and decree in O.S.No.16/2006 on the file of the Senior Civil Judge, Bailhongal and R.A.No.89/2008 on the file of the IX Additional District Judge, Belagavi. 3. RSA.No.1253/2008 is arising from the judgment and decree passed in O.S.No.44/1997 (Originally numbered as O.S. no.14/92) on the file of the Civil Judge (Jr.Dn.), Bailhongal and judgment and decree in R.A.No.21/2003 on the file of Senior Civil Judge, Bailhongal. 4. The suit in O.S.No.16/2006 referred to above is in respect of property bearing SY.No.18 measuring 15 acres and 27 guntas in Chinnapur Village, Taluk Bailhongal. The suit is filed for declaration of title and consequential relief of injunction. 5. The suit in O.S.No.44/1997 is filed in respect of property bearing Sy. No.17 of Chinnapur village, Taluk Bailhongal. The suit is filed for declaration and injunction wherein the plaintiffs claim title over 2/3rd share. 6. In both the suits, the plaintiffs and defendants No.1 and 2 are the same. In O.S.No.44/1997, the third defendant is the father of the plaintiffs. 7. The genealogy of the parties to the suit is as under: 8. The propositus Siddalingappa, died in 1949 leaving behind two sons, Mahantappa and Balachandra and a daughter, Parwatevva. Mahantappa died in 1997, Parwatevva died in 2008 and Balachandra in 1989. 9. The suits referred to above are filed by the sons of Mahantappa. In O.S. no. 44/1997 the plaintiffs claimed that the 1st defendant (Parwatevva) did not acquire title over 2/3rd share in the suit property bearing Sy. No.17 on the premise, that the plaintiffs acquired 2/3rd right over the property by birth in the family as the said property was the ancestral property in the hands of their father Mahantappa. 10. In O.S.No.16/2006, filed in respect of Sy. No.18 referred to above, absolute ownership is claimed on the premise that the defendant no.1 (Parwatevva) did not acquire any right over the property based on entries in the revenue records and sought consequential relief of injunction. 11. The grievance of the plaintiffs, in both the suits is that name of Parwatevva, their father's sister is entered in the property records without any valid transfer of title and possession in respect of properties bearing Sy.Nos.17 and 18 referred to above. 11. The grievance of the plaintiffs, in both the suits is that name of Parwatevva, their father's sister is entered in the property records without any valid transfer of title and possession in respect of properties bearing Sy.Nos.17 and 18 referred to above. The above-said contention is raised by the plaintiffs on the premise that in the family partition of 1951 (registered in the year 1955) the Sy. No.17, along with other properties is allotted to the plaintiffs' father Mahantappa and Sy. No.18, along with some other properties is allotted to the plaintiffs' uncle Balachandra. 12. Parwatevva's name is recorded in the property records of Sy. No.17 in the year 1974 vide ME.No.144 and in respect of Sy. No.18 in the year 1976 vide ME.No.152. These entries which are effected during the lifetime of Mahantappa and Balachandra are disputed many years later by the children of Mahantappa. 13. Parwatevva and her husband, who are named as defendants, in the aforementioned suits contested the claim. It is urged that the aforementioned properties are transferred to Parwatevva in terms of family settlement which took place much earlier to the certification of above said mutations. 14. The suit in O.S.No.44/1997 was decreed. The Trial Court held Parwatevva did not acquire any title over the property bearing Sy. No.17. The appeal filed by Parwatevva and her husband in R.A.No.21/2003 is allowed. The First Appellate Court held that Parwatevva is the owner of the property and dismissed the suit. 15. The suit filed by the plaintiffs in O.S.No.16/2006 in respect of property bearing Sy. No.18 was dismissed. The plaintiffs challenged the judgment and decree in R.A.No.89/2008. Said appeal was allowed. Consequently, O.S.No.16/2006 was decreed in part and the First Appellate Court molded the relief and granted partition for ½ share in the suit property to the plaintiffs and awarded ½ share to defendant No.1 - Parwatevva. 16. The defendants in O.S.No.16/2006 are challenging the First Appellate Court's judgment and decree in R.A.No.89/2008. This Court has admitted this appeal by order dated 22nd March 2016, to consider the following substantial question of law: "Whether the judgment arrived at by the first appellate Court is right in view of its finding that there is no need to consider the oral evidence of the parties in detail?" 17. The plaintiffs in O.S.No.44/1997 who are the respondents No.1 and 2 in R.A.No.21/2003 have filed RSA.No.1253/2008. The plaintiffs in O.S.No.44/1997 who are the respondents No.1 and 2 in R.A.No.21/2003 have filed RSA.No.1253/2008. The said appeal is admitted vide order dated February 6, 2014, to consider the following substantial question of law: "i) Whether the first appellate Court has committed a serious error in reversing the judgment and decree of the trial Court by overlooking the principles of law to the effect that in a joint Hindu family when the succession opens prior to 1956, the daughter of the deceased would not be entitled to any share in the ancestral and coparcenary property? ii) Whether the first appellate Court has committed a serious error in holding that the R2 has been given suit schedule property as per the alleged oral family arrangement more particularly on Ex.D3 i.e., the varadi to entry in the revenue records, in the light of her father died in the year 1949, prior to Hindu Succession Act?" 18. Considering the submissions made by the learned counsel for both the parties and having regard to the materials on record, this Court is of the view that the substantial question of law No. (i) framed in RSA.No.1253/2008 does not arise for consideration as Parvatevva is not claiming a share in the properties under section 6 of the Hindu Succession Act, 1956. Accordingly same is deleted. Both the learned counsel also agreed to delete the said question. 19. In RSA.No.100558/2015, this Court is of the view that in addition to the aforementioned substantial question of law, framed vide order dated 22nd March 2016 the following substantial question of law is required to be considered. "Whether the family arrangement asserted by the Parwatevva is established?" 20. After framing the substantial questions of law as referred to above, the learned counsel for both parties were heard on all the substantial questions of law. 21. Sri. Harsh Desai, learned counsel for the appellants, would raise the following contentions: (i) Balachandra having inherited the property from his father, along with his brother Mahantappa, acquired exclusive title and possession over the property bearing Sy. No.18 in the partition of 1951 registered in 1955. In his lifetime Balachandra made a family arrangement and transferred the possession of the said property to his sister and 10- 12 years thereafter reported the said arrangement before the revenue authorities and at his behest the Sy. No. 18 is mutated in the name of Parwatevva. No.18 in the partition of 1951 registered in 1955. In his lifetime Balachandra made a family arrangement and transferred the possession of the said property to his sister and 10- 12 years thereafter reported the said arrangement before the revenue authorities and at his behest the Sy. No. 18 is mutated in the name of Parwatevva. Balachandra never claimed any right over the said property thereafter. Having died in 1989, his brother's sons cannot claim to be the heirs to the said property. (ii) Though entry No 152 is certified in the name of Parwatevva in the year 1976 and Balachandra lived till 1989, he did not question the said entry in his lifetime. He acknowledged the said entry and ownership of Parwatevva over Sy. No. 18. (iii) In the year 1974, Balachandra filed a declaration before the revenue authorities declaring his holdings of lands and Sy. No. 18 was not included in the said declaration and the same would demonstrate that he did not treat Sy. No.18 as his property after the family arrangement and he was aware of the certification of M.E. No. 152. (iv) Though Balachandra had no Class-I heirs and as he had transferred the property bearing Sy. No.18 in the name of his sister by way of family arrangement, the property did not devolve upon any of his Class -II heirs and even his brother Mahantappa did not claim right over the said property though Mahantappa lived for 9 years after the demise of his brother Balachandra. (v) After Balachandra's death, his brother, Mahantappa, filed a suit in O.S.No.6/1992 claiming ownership over the properties left behind by Balachandra, excluding the property bearing Sy.No.18. The right in respect of other properties of Balachandra is claimed under a Will alleged to have been executed by Balachandra. This fact demonstrates that even Mahantappa was aware that property no.18 was treated as the property of Parwatevva. Balachandra, being aware that he has transferred the property in the name of Mahantevva has not included the said property in the Will alleged to be that of Balachandra. (vi) The family arrangement made by Balachandra in favour of his sister Parwatevva, transferring property bearing Sy. No.18, does not require registration as it is a family arrangement between the siblings and the same was done to fulfill the wish of the father who originally owned the properties. (vi) The family arrangement made by Balachandra in favour of his sister Parwatevva, transferring property bearing Sy. No.18, does not require registration as it is a family arrangement between the siblings and the same was done to fulfill the wish of the father who originally owned the properties. (vii) Mahantappa in his lifetime did not question certification of ME.No.144, certified in 1976 wherein the name of Parwatevva is entered in the property records of Sy. No.17 by way of oral family arrangement. (viii) The plaintiffs do not acquire right in property bearing Sy. No.17 as the said property was given to Parwatevva by way of oral family arrangement even before the birth of the plaintiffs. 22. In support of his contention Sri. Desai relied on the following judgments: (I) Kale And Others v. Deputy Director Of Consolidation [1976] 3 SCC 119 (ii) Krishna Bihari Lal v. Gulabchand And Others [1971] 1 SCC 837 (iii) Korukonda Chalapathi Rao And Another v. Korukonda Annapurna Sampath Kumar 2021 SCC Online SC 847 23. Sri. Arun Neelopant, learned counsel for the respondents/plaintiffs, would raise the following contentions. (i) There is no valid transfer of properties bearing Sy. No.17 and 18 in favour of Parwatevva as there is no registered document evidencing the transfer of title and possession in favour of Parwatevva. (ii) The M.E. no. 144 and 152 are certified without notice to Mahantappa and Balachandra and their title over the said properties is not extinguished by the alleged mutation entries No.144 and 152. (iii) If at all family arrangement was made, it should have been among Balachandra, Parwatevva and Mahantappa before the division of properties between Mahantappa and Balachandra. There can be no family arrangement between Mahantappa and his sister on the one hand and Balachandra and his sister on the other as Mahantappa and Balachandra separated in 1951. (iv) Though the alleged family arrangement is said to have been made in 1951, the mutation is certified in the name of Parwatevva in 1975-76 and it is recited in the mutation that possession is transferred 10 to 12 years before the certification of mutation. No explanation is provided as to why the mutations are not changed by entering the name of Parwatevva in the property records despite the claim that the properties were transferred 12 to 14 years before the certification of mutation. No explanation is provided as to why the mutations are not changed by entering the name of Parwatevva in the property records despite the claim that the properties were transferred 12 to 14 years before the certification of mutation. (v) Since Balachandra died intestate, his right in the property bearing Sy. No.18 would devolve upon Mahantappa and after Mahantappa's death, his children have acquired 1/2 share over the said property and the First Appellate Court is justified in granting partition by molding relief. (vi) The right to seek partition is a continuing right and unless the defendants can establish ouster, the partition suit cannot be dismissed on the ground of limitation and the First Appellant Court is justified in molding the relief and granting the partition decree in RA no.89/2008 (vii) The plaintiffs acquire right in Sy. No.17 by reason of birth in the family and their 2/3rd right in Sy. No.17 is not extinguished by reason ME.No.144 as the plaintiffs have not submitted any applications to enter the name of Parwatevva in the property records. Thus, the appellate court erred in allowing R.A. no.21/2003. 24. In support of his contention Sri. Neelopant relied upon the following judgments: (I) S.B.Majmudar And Sujata v. Manohar (II) Harpal Kaur v. Arshnoor Sing And Others 2019 Air Cc 1590 (P & H) 25. This Court has considered the submission advanced at the Bar and perused the records and the judgments cited. 26. The moot point in the case is the legality of the family arrangement pleaded by Parwatevva. The plaintiffs contend that the above-said mutations do not create any right in favour of Parwatevva for want of a registered document conveying title in her favour. Parwatevva contends that the oral family arrangement does not necessarily contemplate registration in all situations. Relying on the judgment of the Apex Court in the case of KALE AND OTHER referred (supra) it is urged that the oral family arrangement does not require registration. The attention was drawn to the relevant portion of the said judgment which reads as under: "10. Relying on the judgment of the Apex Court in the case of KALE AND OTHER referred (supra) it is urged that the oral family arrangement does not require registration. The attention was drawn to the relevant portion of the said judgment which reads as under: "10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: "(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion, or undue influence; (3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a 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 the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim, or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement." (Emphasis supplied) 27. In terms of the ratio laid down in the aforementioned case which is subsequently followed by the Apex Court in the case of Korukonda Chalapathi Rao And Another (Supra), there is no difficulty in holding that certain kinds of family arrangements need not be registered. Keeping in mind this proposition of law the Court has to consider whether the family arrangement pleaded by first defendant/Parwatevva is valid without there being any registered document. 28. There is no dispute that two mutations namely ME.No.144 (Ex.P.11) and ME.No.152 (Ex.P.12) referred to above are certified in 1974 and 1976 respectively. These mutations are not questioned either by Mahantappa or Balachandra. Plaintiffs contend that the mutations are certified without notice to Mahantappa and Balachandra. The recitals in the mutations referred to above also reveal that the mutations are certified pursuant to the applications submitted by Mahantappa and Balachandra. The certified copies marked Exs.P.11 and 12 would reveal that the notice was sent before certification and the notice was also served and published and entries are certified as there was no objection to the said mutations. The court has to draw an inference that the mutations are certified after notice to Mahantappa and Balachandra. The reasons are not far to seek. Under Karnataka Land Revenue Act, before the change of name in the property records there has to be notice to interested persons. The law presumes that the official acts are done as mandated in law. Of course, the presumption is rebuttable. However same is not rebutted. On the other hand, there are enough circumstances that suggest the mutations are certified with the knowledge of Mahantappa and Balachandra. The law presumes that the official acts are done as mandated in law. Of course, the presumption is rebuttable. However same is not rebutted. On the other hand, there are enough circumstances that suggest the mutations are certified with the knowledge of Mahantappa and Balachandra. Once it is shown that the mutations are certified with the knowledge of the owners, then the recital in the mutations assume importance. The recitals reveal that Parwatevva was in possession of the properties 10 to 12 years before the certification of the mutations and acknowledging her previous possession the Mahantappa and Balachandra have applied to enter Parwatevva's name and delete their names from the respective records. From the plain reading of the contents of the mutations referred to above indicates that Parwatevva had the properties 10 to 12 years before the mutations. If there are any other documents to support the contents of the said mutations then the Court can conclude that Parwatevva the sister of Mahantappa and Balachandra was put in possession of the properties referred to in the aforementioned mutations. Mr.Desai has stressed on Ex.D36 and Ex.D.35 the declarations under Form No.11 under the Karnataka Land Reforms Act. These declarations in Ex.D.6 and Ex.D.35 are undisputed. More than anything else these are the documents executed by Mahantappa and Balachandra respectively. In these documents, Mahantappa and Balachandra have furnished the declaration relating to their respective holdings of agricultural lands. Admittedly, property bearing Sy.Nos.17 is not shown in the declaration of Mahantappa and Sy. No. 18 is not forthcoming in the declaration of Balachandra. Thus, it leads to the logical conclusion that Mahantappa and Balachandra did not treat the property bearing Sy.Nos.17 and 18 as their properties when the said declarations are filed in December 1974. This leads to the conclusion that the said properties were not in their possession. Thus, these admitted documents support the plea of possession of the property bearing Sy.Nos.17 and 18 by Parwatevva. In these circumstances, the Court must consider how Parwatevva came in possession of the properties. It is not the case of Mahantappa and his children that Parwatevva is a trespasser. Though the plaintiffs claim to be in possession the said claim of the plaintiffs is not established. In these circumstances, the Court must consider how Parwatevva came in possession of the properties. It is not the case of Mahantappa and his children that Parwatevva is a trespasser. Though the plaintiffs claim to be in possession the said claim of the plaintiffs is not established. The long-standing entries in the property records over 20 years which are not questioned by the owners (Mahantappa and Balachandra) lead to the presumption that Parwatevva is in possession of the properties. It is apparent from the mutations that the applications to enter the name of Parwatevva in the property records are submitted by Mahantappa and Balachandra. From these documents, the Court can conclude that Parwatevva came in possession of the properties 10 to 12 years before the certification of the mutation entries. 29. The fact that Parwatevva was in possession of the properties 10 to 12 years before the mutations would lead to the logical inference that there was some oral family arrangement made to put Parwatevva in possession of the properties. This is so because plaintiffs or Mahantappa or Balachandra have never stated that Parwatevva is a trespasser. 30. There are a few other circumstances, listed below, that strongly suggest that the family arrangement did take place and Parwatevva was enjoying the properties 10 to 12 years before the certification of mutations which were certified in 1974 and 1976. (a) Balachandra died in 1989. Except Sy. No.18, all other properties allotted to him in the partition of 1951, were standing in his name at the time of his death. Mahantappa, his brother filed O.S.No.6/1992 claiming ownership over all other properties held by Balachandra except Sy.No.18. In the said suit Parwatevva took a defence relating to family arrangement and mutations referred to above pursuant to family arrangement. However, Mahantappa did not choose to question the mutations referred to above. (b) It is alleged that Balachandra had executed a Will in favour of Mahantappa in all his properties except Sy. No.18. This indicates that Balachandra has not treated it as his property. (c) The suit for declaration of title over Sy. No.17 is filed in the year 2006 after the dismissal of the appeal in RFA.No.486/1997 arising from judgment in O.S.No.6/1992. The appeal was decided on 18.09.1999. From 1989 the year in which Balachandra died, to 2006, no claim is laid over Sy. No.17. (c) The suit for declaration of title over Sy. No.17 is filed in the year 2006 after the dismissal of the appeal in RFA.No.486/1997 arising from judgment in O.S.No.6/1992. The appeal was decided on 18.09.1999. From 1989 the year in which Balachandra died, to 2006, no claim is laid over Sy. No.17. The suit is filed by the sons of Mahantappa in the year 2006 claiming that the property is a coparcenary property that too when Mahantappa was alive. (d) Parwatevva raised a loan on the security of the properties bearing Sy. No.17 and 18. The electricity connection to the bore well in the land is in the name of Parwatevva. 31. It is contended by the plaintiffs that despite the claim by Parwatevva that her father wished that some of the properties be given to her, she has not entered the witness box to substantiate the contention. Indeed Parwatevva would have been the best witness in this regard. Before the Trial Court, Parwatevva has led evidence through her power of attorney holder. However, the claim of family arrangement cannot be rejected merely because Parwatevva did not personally lead evidence to support her claim. 32. It is forthcoming from the records, that the family-owned more than 130 acres of land when the father died and Parwatevva was 14 years old. She is the only daughter of Siddalingappa. The partition took place in the year 1951. When the father died in 1949, leaving a minor daughter, the elder brother who inherited the properties of the father had an obligation to look after the minor sister Parwatevva. Though such an obligation cannot be strictly termed as an obligation flowing from a statute, certain obligations are assumed and taken upon by the persons on moral considerations arising from close blood relationships. 33. Though Parwatevva has not entered the witness stand to testify about what transpired when she was 14 or 15 years old at the time of her father's death, or how exactly the oral family arrangement took place, the records would clearly show that Parwatevva was given the properties bearing Sy.Nos.17 and 18. The fact that she possessed the properties ten years before the mutation entries were certified would clearly show that the brothers orally agreed that some family arrangement should be made to confer right over certain properties for the benefit of their sister. The fact that she possessed the properties ten years before the mutation entries were certified would clearly show that the brothers orally agreed that some family arrangement should be made to confer right over certain properties for the benefit of their sister. Taking into account the parties' close relationship, huge extent of land owned by the family and as well as the fact that the father died when the daughter was 14 years old, this Court is inclined to conclude that the brothers assumed certain obligations towards Parwatevva, who lost her father when she was 14 years old and in the discharge of the same they voluntarily made the family arrangement. Taking all the circumstances referred to above, this Court is of the view that the ratio laid down in the case of Kale and others (supra) squarely applies to the facts of the case at hand. And thus, the oral family arrangement reflected in the mutations referred to above, which speak about the past family arrangement, is valid and same does not require registration. Thus, Parwatevva acquired right over Sy. No.17 and 18 referred to above, in the family arrangement. 34. Once the Court holds that the family arrangement is valid and that Parwatevva acquired ownership, the contention of the plaintiffs that the partition suit is maintainable even after a lapse of a long time after certification of mutations cannot be accepted. Hence, the ratio laid down in the case of Indira v. Arumugam ILR 1998 Kar 1422 referred (supra) has no application to the case on hand. 35. The contention of the respondents in RSA.No.1253/2008 taking shelter under the judgment in the case of Arshnoor Singh v. Harpal Kaur and others that the plaintiffs acquired right in suit properties by birth in the family cannot be accepted. As far as Sy. No.18 is concerned, the said property is the property which belonged to Balachandra the uncle of the plaintiffs and the property of the uncle, flowing through the father cannot be considered as coparcenary property. As far as Sy. No. 17 is concerned before the plaintiffs were born, the family arrangement had taken place and it was acted upon. Thus, the above-said properties bearing Sy. No.17 and 18 were not the properties of Mahantappa and Balachandra when the plaintiffs were born. As far as Sy. No. 17 is concerned before the plaintiffs were born, the family arrangement had taken place and it was acted upon. Thus, the above-said properties bearing Sy. No.17 and 18 were not the properties of Mahantappa and Balachandra when the plaintiffs were born. Hence, the contention that the plaintiffs acquired the right over the properties by birth in the family cannot be accepted. 36. This Court makes it clear that the Court has not held that the mutation entries conferred the title on Parwatevva to the properties. It is rather the oral family arrangement made between the parties, i.e. Mahantappa and Balachandra in favour of Parwatevva because of the obligation assumed by the brothers who inherited the vast expanse of lands after the demise of the father when their sister was minor aged 14. Certification of mutation is based on earlier oral family arrangement. 37. As far as the contention of Sri. Arun. L.Neelopant that there can be no family arrangement once the partition between two brothers after the partition in 1951, it should be noted that the partition of 1951 between two brothers was registered in 1955. Though the claim that there can be no family arrangements after the property division technically sounds attractive, it should be noted that Parwatevva is not a party to the partition. It is also true that Parwatevva was not a party to the partition because she is not a sharer, as her father died in 1949. Fact remains that the brothers inherited lands over 130 acres. Since this court has concluded that Parwatevva established lawful possession, over the properties, by applying the principle of preponderance of probability, the court has to hold that the brothers assumed that they are under obligation to confer certain benefits to their sister in certain properties which they inherited from their father. Other than this, there is no other acceptable explanation on record to show how Parwatevva came into possession of the properties bearing Sy.Nos.17 and 18. As already noticed it is not the case of the plaintiffs that Parwatevva is a trespasser or a licensee. Under peculiar circumstances, the brothers' contention that there can be no family arrangement after the division of their properties is not accepted. As already noticed it is not the case of the plaintiffs that Parwatevva is a trespasser or a licensee. Under peculiar circumstances, the brothers' contention that there can be no family arrangement after the division of their properties is not accepted. The brothers in consideration of their concern, love and affection or maybe to honour the wish of their father, who wanted to confer property rights in some properties, took steps to transfer the properties by way of oral family arrangement and the same was acted upon. The arrangement was later reported to the authorities for a change of entries in the records. The conduct of Mahantappa and Balachandra in not questioning the long-standing mutations and other conducts already discussed lead to the inevitable conclusion of family arrangement. 38. Parwatevva did not enter the witness box and did not personally lead evidence to establish family arrangements. However for the reasons already discussed the court has concluded that family arrangement did take place. Thus, Parwatevva's oral evidence is not of much significance as the claim is firmly established through documents and the conduct of Mahantappa and Balachandra. The Court has taken into consideration the various conduct of Mahantappa and Balachandra in upholding the claim of family arrangement rather than the oral evidence of the power of attorney holder of Parwatevva. 39. Though Sri. Arun L.Neelopant submitted that there is inconsistency in the case of Parwatevva wherein she has taken the stand that family arrangement took place in the year 1951 and the mutation would reveal that the properties are transferred somewhere in the 1960s. Though the stand relating to the date or year of family arrangement is inconsistent, those inconsistencies are not fatal, given the fact that Parwatevva's possession is established 10 to 12 years before the certification of the mutations referred to above. Under these circumstances, this Court is of the view that in RA no.89/2008 the First Appellate Court erred in overturning the Trial Court's finding on the premise that the family arrangement is not established for want of registration. 40. The First appellate court in RA no.89/2008 erred in not noticing and analyzing the vital aspects discussed above. The first appellate court in para no. 24 of the impugned judgment in RA no.89/2008 went to the extent of observing that no need to consider the oral evidence of the parties in detail. 40. The First appellate court in RA no.89/2008 erred in not noticing and analyzing the vital aspects discussed above. The first appellate court in para no. 24 of the impugned judgment in RA no.89/2008 went to the extent of observing that no need to consider the oral evidence of the parties in detail. Such a finding is impermissible in an appeal under Section 96 of the Code. 41. Sri. Arun L.Neelopant learned counsel for the appellants has filed an application to amend the plaint in which they are claiming partition in view of the death of their father Mahantappa, the properties would devolve upon the wife and two children after the father's death. Since this Court has ruled that the family arrangement is valid, Mahantappa will have no claim to Sy.Nos.17 and 18. As a result, the leave to amend must be denied and the same is rejected. 42. For the reasons stated above, this Court is of the view that the substantial questions of law relating to the validity of family arrangements must be resolved in favour of defendant no.1 and against the plaintiffs. 43. Hence the following:- ORDER (i) The appeal in RSA 100558/2015 is allowed. The judgment and decree dated 20.04.205 in R.A. no.89/2008 on the file of IX Additional District Judge Belagavi are set aside. The judgment and decree passed in O.S. no. 16/06 are restored. (ii) The appeal in RSA 1253/2008 is dismissed. The judgment and decree dated 28.01.2008 in R.A. no.21/2003 on the file of Senior Civil Judge Bailhongal, are restored and consequently, the suit in O.S. no. 44/97 is dismissed. (iii) Considering the relationship of the parties, the cost is made easy.