Current Trends In Law: Unregistered family partition By Adv. R.S. Agrawal

Through the judgment of the case – Thualsidhara & Another v. & Others, delivered on May 1, 2019, the division bench of Justice L. Nageswara Rao and Justice M.R. Shah, at the Supreme Court have made it clear that on the lines of its judgment in the case – Subraya M.N. v. Vittala M.N. & Others – (2016) 8 SCC 705, even without registration a written document of family settlement / family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties.

          In the present case, even the plaintiff has also categorically admitted that the oral [partition had taken place on April 23, 1971, and he also admitted that 3 to 4 panchayat people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of the plaintiff that there was an oral partition on April 23, 1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition.

          Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the Karnataka High Court has committed a grave/manifest error in not looking into and/or not considering the document Exhibit D4 of April 23, 1971.

          So far as the Sale Deed of May 18, 1973 (EXh. P2) executed by Siddalingappa in favor of the plaintiff is concerned, there was a categorical finding by both the Courts below that the said document was sham.

          It is required to be noted that in the cross-examination, the plaintiff had stated that he paid Rs 3000 to 4000 to Siddalingappa and the said property was purchased by him in the year 1973. However, in the document, the sale consideration is stated to be Rs 200/-. Even PW2 Siddalingappa had stated that he purchased the suit schedule property for Rs 200/- and he sold the suit schedule property to the plaintiff for Rs 600/-. Therefore, it is a serious dispute with respect to the consideration paid by the plaintiff and received by Siddalingappa.

          The appellants herein, who are original defendants have filed this appeal before the Supreme Court against the judgment and order passed by the Karnataka High Court on July 25, 2007, allowing the regular second appeal of the respondents herein(original plaintiffs).

          The HC quashed and set aside the judgment and decree passed by both the Courts below, dismissing the suit, and consequently decreeing the suit.

          The respondents herein – the original plaintiffs instituted the suit in the Court of Munsiff and JMFC at Gubbi in the year 1984 praying for the judgment and decree in their favour to the effect that that he be declared the owner of the suit schedule property and also for permanent injunction restraining the appellants herein (original defendants) from interfering with his peaceful possession and enjoyment of the suit schedule property.

          It was the case on behalf of the original that he has become an owner of the suit property having purchased the same under a registered Sale Deed and therefore the defendants have no right whatsoever to interfere with his peaceful possession and enjoyment of the suit schedule property.

          The suit was resisted by the defendants by filing the written statement. It was the defendants’ case that the husband of the defendant -1 and father of the defendants Nos. 2 and 3, that is A.N. Krishnappa (deceased) purchased the suit property on December 12, 1948, under a registered Sale Deed for a consideration of Rs 400/-.That the suit property was blended into the joint family properties by him.

           Thereafter the partition between the sons of deceased Nanjappa was recorded on April 23, 1971 and the suit property fell into the share of the deceased A.N.Krishnappa. It was also the case of the defendants that they are enjoying the possession of the suit property.

          It was also their case that no Sale Deed has been executed by the defendants in favor of the plaintiff and the alleged Sale Deed is fabricated by the plaintiff.

          The trial court held that there was a partition between a family on April 23, 1971and the Partition Deed of the same date was admissible in evidence. The suit property was available at the time of partition. The Sale Deed relied upon by the original plaintiff was only a nominal Sale Deed and not an out and out sale deed since Exh. P1 was executed as security for loan and never intended to sell the suit property. It was also finding of the trial, court that the suit property was purchased by late Krishnappa for a sum of Rs 400/- in 1948 and thereafter it is stated to have been sold at Rs 200/- after 16 years in 1964, which is highly improbable.

           The trial court also gave a specific finding that there was a concealment of material facts in the suit, which shows mala fide intention of the plaintiff. It also held that the plaintiff in collusion with PW2 has got executed a sham document in his favor. By holding so and recording these findings, the trial court dismissed the suit.

          The First Appellate Court dismissed the original plaintiff’s appeal and confirmed the trial court’s judgment and decree while dismissing the suit with the observation that Exh. D4 cannot be said to be a Partition Deed and can be said to be only a list of properties partitioned and does not create or extinguish any right in the immovable property and, therefore, not a compulsorily registrable document and, therefore, Exh.D4 is admissible in evidence.

          In the second appeal filed by the original plaintiff, the HC allowed the appeal and interfered with the findings of facts recorded by both the Courts below and consequently decreed the suit by holding that the partition deed-D$ required registration and, therefore, inadmissible in evidence. The HC further held that both the Courts below are not justified in holding document Exh. P1 was only a nominal sale deed and the same was not acted upon.

          According to the Supreme Court, in these facts and circumstances of the case, the HC was not justified interfering with the findings recorded by both the Courts below. Hence, for the stated reasons the impugned judgment and order passed by the HC cannot be sustained and the same deserves to be quashed and set aside and accordingly, the Apex-Court quashed and set it aside. The Supreme Court restored the judgments and orders passed by the two Courts below dismissing the suit filed by the original plaintiff.

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