SRI. P.M. PUTTASWAMY vs SRI. P M SHIVAMURTHY
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 5 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 1651 OF 2014 (PAR)
BETWEEN:
1. SRI. P.M. PUTTASWAMY
S/O LATE SRI P M MALLIKARJUNAIAH
HIS LEGAL REPRESENTATIVES.
1(a) SMT.RAJAMMA.S
W/O LATE SRI. PUTTASWAMY
AGED ABOUT 49 YEARS
TH
R/O NO. 504, 6 MAIN ROAD
TH
6 CROSS, NEAR KALIKAMBHA TEMPLE
KENGERI SATELITE TOWN
BANGALORE – 560 060.
1(b) SRI. NIRANJAN.P
S/O LATE SRI. PUTTASWAMY
AGED ABOUT 27 YEARS
TH
R/O NO. 504, 6 MAIN ROAD
TH
6 CROSS, NEAR KALIKAMBHA TEMPLE
KENGERI SATELITE TOWN
BANGALORE – 560 060.
1(C) SRI. NITHIN.P
S/O LATE SRI. PUTTASWAMY
AGED AOBUT 24 YEARS
TH
R/O NO. 504, 6 MAIN ROAD
TH
6 CROSS, NEAR KALIKAMBHA TEMPLE
KENGERI SATELITE TOWN
BANGALORE – 560 060.
(AMENDED IS CARRIED OUT AS PER
COURT ORDER DATED: 17.08.2016.)
…APPELLANTS
Digitally
signed by
VANDANA S
Location:
High Court
of
Karnataka
(BY SRI. BASAVANNA.K.M, FOR
SRI. M.V. HIREMATH, ADVOCATES)
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AND:
1. SRI. P M SHIVAMURTHY
S/O LATE SRI MALLIKARJUNAIAH
AGED ABOUT 54 YEARS
WORKING AS A TEACHER
BANGALORE HIGH SCHOOL
SOUTH END CIRCLE
BANGALORE – 560 009.
2. SRI P M LOKESH MURTHY
S/O LATE SRI MALLIKARJUNAIAH
AGED ABOUT 49 YEARS
R/O PURIGALI VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT – 571 401.
3. SMT K MEENAKSHI
AGED ABOUT 62 YEARS
RD
R/O LIG NO.44, 3 STAGE
KUVEMPUNAGAR, MYSORE
MYSORE DISTRICT – 570 005.
…RESPONDENTS
(BY SRI. SHANTARAJU, ADVOCATE FOR R-1
VIDE ORDER DATED: 27.02.2019,
NOTICE TO R-2 IS H/S VIDE ORDER DATED: 14.10.2022,
NOTICE TO R-3 IS D/W)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT &
DECREE DTD 4.1.2011 PASSED IN R.A.NO.109/2009 ON THE FILE OF II
ADDITIONAL DISTRICT JUDGE, MYSORE, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD 4.4.2009 PASSED
IN OS.NO.328/2001 ON THE FILE OF JUDGE, SMALL CAUSES COURT AND
CIVIL JUDGE (SR.DN.), COURT MYSORE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellant was the plaintiff in O.S.No.328/2001 instituted
by him against the respondents – defendants for partition and
separate possession of his alleged share in the suit schedule
immovable properties and for other reliefs. The said suit having
been contested by the respondents 1 and 2 – defendants 1 and 2,
the Trial court decreed the suit of the plaintiff vide judgment and
st
decree dated 04.04.2009 which was assailed by the 1 defendant
in R.A.No.109/2009 which was allowed by the First Appellate Court
which set aside the judgment and decree of the Trial court and
dismissed the suit filed by the appellant – plaintiff who is before this
Court by way of the present appeal, which was admitted by this
Court vide order dated 01.12.2022 by framing the following
substantial questions of law;
(i) Whether the First Appellate Court is justified in relying
upon Ex.D1, the alleged partition deed dated 12.09.1981 though
the same is not registered?
(ii) Whether the First Appellate Court is justified in reversing
the judgment and decree passed by the Trial court without
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discussing the finding of the Trial court relating to inadmissibility of
Ex.D1 for want of registration”?
2. Heard learned counsel for the appellant and learned
counsel for the respondents and perused the material on record.
Re-Substantial questions of law:-
3. For the purpose of convenience, the appellant – plaintiff
and respondents – defendants are referred to by their respective
ranks before the Trial court.
4. A perusal of the material on record will indicate that it is
an undisputed fact and a matter of record that the plaintiff and
defendants 1 and 2 are none other than the children of late
P.M.Mallikarjunaiah, who expired on 12.01.1989. Plaintiff
contended that his father died intestate and the suit schedule
properties are the ancestral joint family properties of the plaintiff
and defendants 1 and 2 and despite the plaintiff calling upon the
defendants orally as well as by issuance of a legal notice dated
06.06.2001 to effect partition of the suit schedule properties, the
defendants did not comply with the said requests and demands,
thereby constraining the plaintiff to institute the instant suit against
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the defendants. Defendant No.3 is undisputedly not a family
member and the suit against her was dismissed during its
pendency before the Trial court itself. In the plaint, the plaintiff
described two house properties as suit ‘A’ schedule property and
suit ‘B’ schedule property and the landed properties as suit ‘C’
schedule properties as can be seen from the schedule to the plaint.
5. Defendant No.1 filed his written statement and contested
the suit, while defendant No.2 remained ex-parte and did not
contest the suit. As stated supra, during the pendency of the suit
before the Trial Court itself, the suit as against defendant No.3 was
dismissed.
6. Defendant No.1 admitted the relationship between the
parties, but however, he disputed and denied the various
allegations and claim made by the plaintiff. It was contended that
while item Nos.1, 2 and 4 to 7 of ‘C’ schedule properties were
ancestral joint family properties, item No.3 of ‘C’ schedule property
was separate and self acquired property of late Mallikajunaiah. It
was also contended that the ‘A’ and ‘B’ schedule properties were
also the separate and self acquired properties of late
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Mallikarjunaiah. It was further contended that on 12.09.1981, there
was a panchayath partition between Mallikarjunaiah and his sons
viz., plaintiff and defendant Nos.1 and 2, under which the joint
family properties i.e., item Nos.1, 2 and 4 to 7 of ‘C’ schedule
properties were divided and partitioned between the plaintiff and
defendant Nos.1 and 2, while item No.3 of ‘C’ schedule properties
as well as ‘A’ and ‘B’ schedule properties which were the separate
and self acquired properties of Mallikarjunaiah were retained by
him, as a result of which, the plaintiff and defendant Nos.1 and 2
did not acquire any right in these properties under the said
panchayath partition. It was also contended that the said item No.3
of plaint ‘C’ schedule properties and plaint ‘A’ and ‘B’ schedule
properties, which were the separate and self acquired properties of
Mallikarjunaiah, who was allotted the same under the aforesaid
panchayath partition dated 12.09.1981 were bequeathed by him
vide registered Will dated 24.10.1987 executed by him in favour of
defendant No.1 and upon the demise of Mallikarjunaiah on
12.01.1989, defendant No.1 became the sole and absolute owner
in lawful and peaceful possession and enjoyment of item No.3 of
the ‘C’ schedule properties as well as ‘A’ and ‘B’ schedule
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properties, over which the plaintiff and defendant No.1 did not have
any right and as such, the suit of the plaintiff was liable to be
dismissed.
7. Based on the aforesaid pleadings, the Trial Court framed
the following issues:
“1) Whether the plaintiff proves that the suit schedule
properties are the joint family properties of plaintiff and
defendants?
2) Whether the defendant No.1 proves that the suit
schedule 'A', 'B' and item No.3 of 'C' schedule properties
were self-acquired properties of his father
P.M.Mallikarjunaiah ?
3) Whether the defendant No.1 proves that his father
P.M.Mallikarjunaiah, bequeathed suit schedule 'A', 'B' &
item No.3 'C' schedule properties in favour of defendant
No.1 under registered Will dated 24.10.1987?
4) Whether defendant No.1 proves that already there was
family partition during the lifetime of P.M.Mallikarjunaiah?
5) Whether defendant No.1 proves that he is in exclusive
possession and enjoyment of suit schedule 'A', 'B' and item
No.3 of schedule 'C' as an absolute owner under the Will?
6) Whether plaintiff is entitled for partition and separate
possession of his share in the suit schedule properties ?
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7) Whether plaintiff is entitled for mesne profits?
8) What order or decree?”
8. The plaintiff examined himself as PW-1 and documentary
evidence at Exs.P-1 to P-16 were marked on his behalf. Defendant
No.1 examined himself as DW-1 and four witnesses as DWs-2 to 5
and documentary evidence at Exs.D-1 to D-10 were marked on his
behalf.
9. After hearing the parties, the Trial Court came to the
conclusion that all the suit schedule properties were the joint family
st
properties of plaintiff and defendants 1 and 2 and that the 1
defendant had failed to prove that suit schedule ‘A’ and ‘B’
properties as well as Item No.3 of suit ‘C’ schedule properties were
the separate and self acquired properties of Mallikarjunaiah. The
st
Trial court also came to the conclusion that 1 defendant had failed
to prove that there was a partition between the plaintiff and
defendants 1 and 2 as well as their father on 12.09.1981, under
which, suit schedule ‘A’ and ‘B’ properties as well as Item No.3 of
suit ‘C’ schedule properties were allotted / retained by the said
Mallikarjunaiah. The Trial court also answered issue No.3 against
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st
the 1 defendant by holding that he had failed to prove that
Mallikarjunaiah had bequeathed the said suit schedule ‘A’ and ‘B’
properties as well as Item No.3 of suit ‘C’ schedule properties
under his last registered Will and Testament dated 24.10.1987 and
rd
consequently, the plaintiff was entitled to 1/3 share in all the suit
schedule properties along with defendants 1 and 2 and
accordingly, decreed the suit in favour of the plaintiff against the
defendants.
st
10. The 1 defendant preferred the instant appeal in
R.A.No.109/2009 which was allowed by the First Appellate Court
by setting aside the judgment and decree of the Trial court, thereby
dismissing the suit filed by the plaintiff by holding as under:-
“9. The points that arises for my determination in this
behalf is:
1. Whether the plaintiff has proved that
he and defendants No.1 and 2 constituted
undivided joint family as on the date of suit ?
2. Whether the plaintiff has proved that
all the suit schedule properties are the joint
family properties of himself and defendants No.1
and 2?
3. Whether defendant No.1 has proved
that there was already partition between him,
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defendants No.1 and 2 and his father
P.M.Mallikarjunaiah in the year 1981 ?
4. Whether defendant No.1 has proved
that plaint 'A' and 'B' schedule properties and
item No.3 of plaint 'C' schedule property are the
self acquired properties of his father
P.M.Mallikarjunaiah ?
5. Whether defendant No.1 has proved
that his father P.M.Mallikarjunaiah has executed
a registered Will dated 24.10.1987 bequeathing
the plaint 'A' and 'B' schedule properties and
item No.3 of plaint 'C' schedule property in his
favour?
6. Whether the plaintiff is entitled for
decree claimed in the suit ?
7. Whether the judgment and decree of
the trial Court needs to be set aside or modified?
10. For the reasons that will follow my answer to
the above points is as under:
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the affirmative
Point No.4 : In the affirmative
Point No.5 : In the affirmative
Point No.6 : In the negative
Point No.7 : In the affirmative
REASONS
Reasons on point Nos.1 & 3:
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11. Plaintiff, who is examined as PW1 in the case
has reiterated the plaint averments in the affidavit
evidence and has stated that he and defendants No.1
and 2 are the sons of P.M.Mallikarjunaiah and the suit
schedule property are his ancestral properties and there
is no partition between him and defendants and he and
defendants are the only legal heirs to his deceased
rd
father and therefore, he is entitled for 1/3 share in the
properties. During cross examination the plaintiff has
admitted that he is having a sister by name Gowramma,
who is still alive. Among the documents marked by the
plaintiff, Ex.P1 is the death certificate of P.M.
Mallikarjunaiah and Ex.P2 is the genealogical tree of the
family of plaintiff and defendants and Ex.P3 is the
intimation of allotment sent by Karnataka Housing Board
to the father of plaintiff and Ex.P4 is the memo sent by
Karnataka Housing Board about handing over the
possession of the property and Ex.P5 is the demand
register extract in respect of plaint 'B' schedule property
and Ex.P6 to P14 are the receipt patta book and RTC
extract in respect of plaint 'C' schedule property and Ex.
P15 is the copy of notice allegedly sent by the plaintiff to
the defendants and Ex.P16 is the postal envelope.
12. Among the witnesses examined by the
defendants, DW1 is the 1st defendant in the suit and in
his affidavit evidence 1st defendant has stated that
there was already partition in the family during the life
time of his father P.M.Mallikarjunaiah and a panchayath
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palupatti as per Ex.D1 was prepared at that time and
the share in the ancestral properties inherited by
P.M.Mallikarjunaiah is already allotted to the plaintiff and
therefore, plaintiff has suppressed the said fact and has
brought the suit. 1st defendant has further stated that
plaint schedule 'A' and 'B' properties and item No.3 of
plaint 'C' schedule property were the self acquired
properties of his father and plaint 'A' schedule property
was acquired by his father P.M.Mallikarjunaiah out of his
self earning as teacher and plaint 'B' schedule property
was granted to P.M.Mallikarjunaiah by village
panchayath and plaint 'C' schedule property was also
acquired by P.M. Mallikarjunaiah out of his self earnings
and therefore, the plaintiff is not entitled for any share in
those properties. 1st defendant has further stated that
his father P.M.Mallikarjunaiah has executed a registered
Will and has bequeathed plaint 'A' and 'B' schedule
properties and item No.3 of plaint 'C' schedule property
to him and therefor, he has become absolute owner of
those properties after the death of his father and plaintiff
or defendant No.2 have no right over those properties.
DW2 Subbaiah in his affidavit evidence has stated that
on 24.10.1987 P.M.Mallikarjunaiah executed a Will in
respect of the properties owned by him and he was
present at the time of execution of the Will has attested
the Will as per Ex.P2(a). DW3 Gowramma, who is the
sister of plaintiff and defendants No.1 an 2, has
deposed that her father P.M.Mallikarjunaiah had given a
sealed cover to her in the year 1988 and had instructed
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her to handover the cover to the 1st defendant and after
the death of her father, she handed over the cover to 1st
defendant and later she came to know that her father
had kept a Will in the said cover. DW4 Rangaswamy in
his evidence has stated that his maternal grand father
Nagarajappa was a Document Writer and Ex.D2 is
signed his maternal grand father as per Ex.D2(d) and
his maternal grand father has also signed Ex.D7 as per
Ex.P7(a) and (b). DW5 B.N.Kumaraswamy has stated
that his father Nanjundaiah is not alive and he can
identify the signature of his father and Ex.D2(c) is the
signature of his father. DW5 has further stated that his
father and P.M. Mallikarjunaiah were friends.
13. Among the documents marked by the
defendants Ex.D1 is said to be the palupatti prepared
when P.M.Mallikarjunaiah and his sons divided the
family properties. Ex.D2 is said to be the Will executed
by P.M.Mallikarjunaiah and Ex.D3 is said to be an
agreement allegedly executed by the plaintiff in favour
of one Shivananjaiah and Ex.D4 is the pay in slips for
having deposited amount in Vijaya Bank, Mysore. Ex.D5
is said to be the lease agreement entered into between
st
the father of 1 defendant and one P.Surendran and
Ex.D6 is said to be another lease agreement entered
into between 1st defendant and one K.Meenakshi.
Ex.D7 is said to be On Demand Pronote prepared by
the father of DW7.
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14. In this case the fact that plaintiff and
defendants No.1 and 2 are the brothers is not in dispute.
There is also no dispute between plaintiff and
defendants No.1 and 2 that their father
P.M.Mallikarjunaiah during his life time was working as
school teacher and he is not alive. There is also no
dispute between parties that except item No.3, other
items of the properties described in plaint 'C' schedule
were the ancestral properties of P.M. Mallikarjunaiah.
Plaintiff has also not disputed the fact that
P.M.Mallikarjunaiah has left behind a daughter by name
Gowramma, who is examined as DW3 and said person
is not impleaded as party in the suit. Plaintiff has
claimed in his plaint, as well as in his oral evidence, that
all the suit schedule properties are the ancestral
properties of himself and defendants No.1 and 2 and
there is no partition in the family and therefore, he is
rd
having 1/3 share in the properties. 1st defendant on
the other hand has contended, both in his written
statement as well as in his oral evidence that there was
already partition in the family during the life time of his
father P.M.Mallikarjunaiah on 12.9.1989 and the share
of the plaintiff in the ancestral properties was allotted to
the plaintiff and he is in possession and enjoyment of
those properties. 1st defendant has further contended
that item No.1 of plaint 'A' schedule property was
acquired by his father P.M.Mallikarjunaiah during his life
time out of his earnings as teacher, and Plaint 'B'
schedule property was granted to his father
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P.M.Mallikarjunaiah by village panchayath and further
his father had also acquired item No.3 of plaint 'C'
schedule property and therefore, those properties were
retained by his father and subsequently his father has
bequeathed those properties to him by executing a
registered Will.
15. Plaintiff during cross examination has stated
that all the suit schedule properties, including plaint 'A'
and 'B' schedule properties, are his ancestral properties.
This clearly discloses that the plaintiff is not aware as to
how the suit schedule properties were acquired. Plaintiff
in his evidence has stated that he does not know when
the land in Sy.No.355(B1) which is described as item
No.3 of plaint 'C' schedule property was granted to his
father as mentioned in Ex.P9. The document at Ex.P9
discloses that the said land was granted to the father of
the plaintiff during the year 1979-80 by the Government.
Plaintiff has deposed in his evidence that he is working
in a college at Bangalore since 27 years before he gave
evidence in Court in the year 2006. Therefore, it is
crystal clear that even before grant of item No.3 of plaint
'C' schedule property, plaintiff was working in Bangalore
and he was staying in Bangalore. Ex.P3 is the intimation
of allotment issued by Karnataka Housing Board to the
father of plaintiff about allotment of the plaint 'A'
schedule property in the year 1987. It is an admitted fact
that father of plaintiff was working as a Government
School teacher and he was having independent income
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of his own. Plaintiff during cross examination has
admitted that his father has acquired plaint 'A' schedule
property out of his self earnings. According to the
plaintiff since his father is dead he is entitled for share.
Further the evidence produced by the defendant and
also admitted by the plaintiff, discloses that plaint 'B'
schedule property was granted to the plaintiff's father by
village Panchayath of Poorigali village. Therefore, it is
crystal clear that plaint 'A' and 'B' schedule properties
and item No.3 of plaint 'C' schedule property were
acquired by the plaintiff's father as his self acquired
property and no joint family funds was spent for
acquiring the said property. 1st defendant has produced
Ex.P4 which are the pay-in slips issues when, the
amount was deposited in Vijaya bank towards payment
of the loan in respect of plaint, 'A' schedule property and
the documents discloses that after the death of plaintiff's
father, 1st defendant has paid the amount to Karnataka
Housing Board in respect of the plaint 'A' schedule
property. Even though 1st defendant has contended that
he has paid some amount to the 1st defendant and 1st
defendant in turn has paid the amount to the Housing
Board, absolutely there is no evidence to substantiate
the same. Hence, it is crystal clear that the plaintiff has
included the plaint 'A' and 'B' schedule properties and
item No.3 of plaint 'C' schedule property in the suit
claiming that those properties are his ancestral
properties even though he is very well aware that those
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properties were acquired by his father and the
properties are not the ancestral properties.
16. It is the specific case of the 1st defendant that
during life time of his father there was partition among
him, plaintiff and 2nd defendant, and the ancestral
properties belonging to the family mentioned as item
No.1, 2, 4 to 7 in plaint 'C' schedule property were
divided among the plaintiff and defendants No.1 and 2
and a Palupatti as per Ex.D1 was prepared at that time.
1st defendant has not denied the palupatti marked as
Ex.D1 in the case and he has also not denied his
signature in the said palupatti. Plaintiff during his cross
examination has admitted that the house properties
situated at Poorigali village and also the house No.372
situated at Mysore are the self acquired properties of his
father. He has further stated that since he is one of the
son left behind by his father, he is entitled for share in
that property. After careful scrutiny of the evidence
given by the plaintiff and also the evidence produced by
the defendant, I am of the view that the plaintiff has not
come up with true facts in the case and he has
suppressed the partition that had taken place between
him and his father and brothers in the year 1981.
st
17. 1 defendant in his pleadings, as well as in his
evidence, has stated that his father has executed a Will
during his life time as per Ex.D2 bequeathing plaint 'A'
and 'B' schedule property and item No.3 of plaint 'C'
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schedule property. Defendants have examined DW2 to
DW5 to prove the execution of the Will at Ex.D2. DW2 is
one of the attesting witness to the Will and he has
deposed about he attesting the Will at Ex.D2 executed
by P.M.Mallikarjunaiah. DW3 is none other than the
sister of the plaintiff and defendants No.1 and 2 and she
has also stated about her father giving the Will at Ex.D2
in a sealed cover to her possession with instructions to
give the document after his death. After careful scrutiny
of the oral evidence of DW2 to DW5, I am of the view
that 1st defendant has proved the execution of the Will
at Ex.D2 by his father in accordance with law. Even in
that document, P.M.Mallikarjunaiah has specifically
stated that plaint schedule 'A' and 'B' schedule
properties and item No.3 of the plaint 'C' schedule
property are his self acquired properties and he was in
exclusive possession of those properties. 1st defendant
has also produced an agreement allegedly executed by
plaintiff in favour of one Shivananjaiah and the same is
marked as Ex.D3. This document discloses that plaintiff
had entered into an agreement with one Shivananjaiah
during the year 1993 to raise loan by pledging
immovable property allotted to his share. Ex.D6 is the
lease agreement entered into between 1st defendant
and one K.Meenakshi in respect of plaint 'A' schedule
property. All these documents unerringly discloses that
there was already partitioned in the family of plaintiff and
defendants No.1 and 2. The document at Ex.D1 clearly
discloses that a share was allotted to 1st defendant in
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the ancestral properties owned by the family and
P.M.Mallikarjunaiah had retained self-acquired
properties with him and had divided ancestral properties
among his sons in the year 1981 itself. Therefore, I hold
that the plaintiff has failed to prove that he and
defendants No.1 and 2 constituted undivided joint family
as on the date of the suit. On the other hand,
defendants No.1 has proved that there was already
partition in the family of himself, plaintiff and 2nd
defendant and a share in the ancestral properties
belonging to P.M.Mallikarjunaiah was allotted to the
share of the plaintiff. Therefore, I have answered point
No.1 in the negative and point No.3 in the affirmative.
Reasons on point No.2:
18. Plaintiff has contended that all the suit schedule
properties mentioned in the plaint schedule are the joint
family properties of himself and defendants No.1 and 2.
While discussing point No.1 and 3, I have already
pointed out that the plaint 'A' and 'B' schedule properties
and Item No.3 of plaint 'C' schedule property were the
self-acquired properties of P.M.Mallikarjunaiah. I have
also pointed out that there is overwhelming evidence on
record to show that there was partition between plaintiff
and defendants No.1 and 2 in the year 1981 itself.
Therefore, the claim of the plaintiff that all the suit
schedule properties are the joint family properties of
himself and defendants No.1 and 2 as on the date of
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suit cannot be accepted. Hence, I have answered point
No.2 in the negative.
Reasons on point No.4:
19. It is the specific case of defendants No.1 that
plaint 'A' and 'B' schedule properties and item No.3 of
plaint 'C' schedule property are the self-acquired
properties of his father P.M.Mallikarjunaiah. 1st
defendant has produced documentary evidence on
record to show that plaint 'A' schedule property was
allotted by Karnataka Housing Board to P.M.
Mallikarjunaiah and plaintiff's father P.M.Mallikarjunaiah
was a school teacher having independent income. It is
also stated that plaint 'B' schedule property was granted
to P.M.Mallikarjunaiah by Poorigali village Panchayath.
This fact is admitted by the plaintiff during cross
examination. The documentary evidence produced by
the plaintiff and marked as Ex.P6 discloses that item
No.3 of plaint 'C' schedule property is granted by the
Government in the name of P.M.Mallikarjunaiah.
Therefore, it is crystal clear that plaint 'A' and 'B'
schedule properties and item No.3 of plaint 'C' schedule
property are the self acquired properties of
P.M.Mallikarjunaiah. Hence, I have answered point No.4
in the affirmative.
Reasons on point No.5:
20. It is the definite case of 1st defendant that his
father P.M.Mallikarjunaiah during his life time has
bequeathed the plaint 'A' and 'B' schedule properties
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and item No.3 of plaint 'c' schedule property in his
favour by executing a Will dated 24.10.1987. Since 1st
defendant has set up the alleged Will of
P.M.Mallikarjunaiah, the burden is on him to prove the
said Will. 1st defendant has examined PW2 to PW5 in
order to prove the said Will. PW2 in his evidence has
stated that he was acquainted with P.M.Mallikarjunaiah
and Ex.D2 was executed by P.M.Mallikarjunaiah in his
presence and he has attested the said Will. PW3 is the
sister of plaintiff and defendants No.1 and 2 and the
witness has stated that her father had given the Will at
Ex.D2 in a sealed cover and she handed over the same
to 1st defendant. DW4 and DW5 have identified the
signature of the other attesting witnesses and the scribe
who are not alive. After careful scrutiny of the oral
evidence of DW2 to DW5, I am of the view that 1st
defendant has proved the execution of the Will at Ex.D2
in accordance with law. I have already pointed out that
plaint 'A' and 'B' schedule properties and item No.3 of
plaint 'C' schedule property are the self acquired
properties of P.M.Mallikarjunaiah. Therefore,
P.M.Mallikarjunaiah was having right to bequeath those
properties to 1st defendant. Hence, I hold that 1st
defendant has clearly proved that his father
P.M.Mallikarjunaiah has bequeathed plaint 'A' and 'B'
schedule properties and item No.3 of plaint 'C' schedule
property in his favour by executing a registered Will
dated 24.10.1987 as per Ex.D2. Hence, I have
answered point No.5 in the affirmative.
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Reasons on point No.6:
21. Plaintiff has brought the suit seeking partition
suppressing the fact that there was already partition
between him and his brothers and further plaint 'A' and
'B' schedule properties and item No.3 of 'C' schedule
property were the self acquired properties of his father
P.M.Mallikarjunaiah and his father has bequeathed
those properties to 1st defendant. Since there is clear
evidence on record to show that there was already
partition between plaintiff and defendants No.1 and 2 in
respect of the ancestral properties belonging to their
family and further plaint 'A' and 'B' schedule properties
and item No.3 of plaint 'C' schedule property were the
self acquired properties of P.M.Mallikarjunaiah and he
has bequeathed those properties to 1st defendant, I am
constrained to hold that the plaintiff is not entitled for the
decree for partition claimed in the suit. Therefore, I have
answered point No.6 in the negative.
Reasons on point No.7:
22. On going through the judgment and decree
passed by the trial Court it scan be seen that the
learned trial Judge has ignored the admissions made by
the plaintiff during cross examination that plaint 'A' and
'B' schedule property and item No.3 plaint 'C' schedule
property are the self acquired properties of his father
and further plaintiff's father has executed a will
bequeathing those properties in favour of 1st defendant.
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The learned trial Judge has not properly appreciated the
evidence produced by the parties and even though 1st
defendant has produced clear evidence on record about
the execution of Will by his father as per Ex.D2, the trial
Court has held that the Will is not proved. Further the
learned trial Judge has also ignored the other evidence
available on record which clearly discloses that there
was already partition between plaintiff and defendants
No.1 and 2 in the year 1981 itself. Therefore, the
judgment and decree passed by the trial Court for
partition of the suit schedule properties is not
sustainable either in law or on evidence available on
record and hence, the same is liable to be set aside.
Therefore, I have answered point No.7 in the affirmative.
23. For the reasons discussed above, the appeal
filed by the plaintiff / appellant in the case deserves to
be allowed and hence, I pass the following:
ORDER:
The appeal is allowed.
The judgment and decree passed by the Court
of Small Causes and Civil Judge (Sr.Dn.)
Mysore in O.S.No.328/2001 dated 4.4.2009 is
set aside. The suit in O.S.328/2001 on the file
of Small Causes Court and Civil Judge (Sr.Dn.)
Mysore is dismissed with costs. In the
circumstances of the case there is no order as
to costs.
Draw decree accordingly.”
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11. As can be seen from the impugned judgment and decree
of the First Appellate Court, the First Appellate Court came to the
conclusion that Items 1, 2 and 4 to 7 of plaint ‘C’ schedule
properties were divided and partitioned between the parties along
with their father Mallikarjunaiah under unregistered Panchayath
Parikath at Ex.D1 dated 12.09.1981, as a result of which, the
plaintiff would not be entitled to claim any share in the said
properties; in this context, the First Appellate Court came to the
conclusion that the aforesaid properties were the subject matter of
the aforesaid Panchayath Parikath at Ex.D1 dated 12.08.1981
which was proved by the evidence on record; however, the First
Appellate court failed to consider and appreciate the recitals /
contents of the said document at Ex.D1 which was undisputedly an
unregistered document and was inadmissible in evidence for the
purpose of effecting division / partition of properties especially
when the said document was an out and out partition and not a
record of a past partition and the revenue records, RTCs etc., had
not been changed, pursuant to the alleged partition which was not
acted upon for the purpose of dividing the said properties in terms
of the said document; in other words, the First Appellate Court
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clearly fell in error in failing to appreciate that having regard to the
undisputed fact that the alleged partition deed dated 12.09.1981 at
Ex.D1 which effected division and partition of Items 1, 2 and 4 to 7
of ‘C’ schedule properties was an unregistered document, which
was inadmissible in evidence and could not be relied upon in view
of Section 17 and 49 of the Registration Act, the said properties
could not have been said to be divided between plaintiff and
defendants 1 and 2 as per the said document and consequently,
the said Items 1, 2 and 4 to 7 of ‘C’ schedule properties would
necessarily have to be divided by metes and bounds by passing a
rd
decree for partition of 1/3 share of plaintiff and defendants 1 and 2
in respect of these properties and the suit of the plaintiff would
have to be decreed in part in respect of these properties.
12. Under these circumstances, I am of the considered
opinion that the First Appellate Court fell in error in answering
Points 1 to 3 framed by it for the purpose of dismissing the suit of
the plaintiff in respect of Items 1, 2 and 4 to 7 of ‘C’ schedule
properties and as such, the said findings recorded by the First
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Appellate Court deserve to be set aside and the suit of the plaintiff
deserves to be decreed in respect of these properties.
13. Insofar as the suit schedule ‘A’ and ‘B’ properties as well
as Item No.3 of suit ‘C’ schedule properties are concerned, it is
relevant to state that though the Panchayath Parikath at Ex.D1
dated 12.09.1981 was inadmissible in evidence and cannot be
relied upon for the purpose of effecting partition and division of the
suit schedule properties, the said document was admissible in
evidence and can be relied upon to evidence the collateral
transaction and for the collateral purpose of proving severance in
the status of the joint family between Mallikarjunaiah and his sons,
viz., plaintiff and defendants 1 and 2 herein; at any rate, the First
Appellate court recorded a finding of fact based on legal and
acceptable evidence that suit schedule ‘A’ and ‘B’ properties as
well as Item No.3 of suit ‘C’ schedule properties were the separate
and self acquired properties of late Mallikarjunaiah and that the
plaintiff and defendants 1 and 2 did not have any right over the said
properties during the life time of Mallikarjunaiah; so also, the First
Appellate Court correctly placed reliance upon the evidence of DW-
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1 (Defendant No.1), evidence of DW-2 who was the attesting
witness to the Will of Mallikarjunaiah dated 24.10.1987 at Ex.D2,
evidence of DW-3 Gowramma, sister of plaintiff and defendants 1
and 2, the evidence of DWs 4 and 5 who were the grand son and
son of the scribe and attesting witness respectively of Ex.D2 and
had identified their signatures and the other evidence on record in
st
order to record a categorical finding of fact that the 1 defendant
had established / proved the said Will at Ex.D2 dated 24.10.1987
st
executed by Mallikarjunaiah in favour of 1 defendant, by virtue of
which, he had become the absolute owner of suit schedule ‘A’ and
‘B’ properties as well as Item No.3 of suit ‘C’ schedule properties,
nd
over which, the plaintiff and 2 defendant did not have any right.
The said findings of fact recorded by the First Appellate court for
the purpose of dismissing the suit of the plaintiff in respect of suit
schedule ‘A’ and ‘B’ properties as well as Item No.3 of suit ‘C’
schedule properties based on legal and acceptable evidence
cannot be said to suffer from any illegality or infirmity nor can the
same be said to be capricious or perverse warranting interference
by this Court in the present appeal and the impugned judgment and
decree of the First Appellate Court dismissing the suit of the
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plaintiff in respect of suit schedule ‘A’ and ‘B’ properties as well as
Item No.3 of suit ‘C’ schedule properties deserves to be confirmed.
However, as stated supra, in view of the findings recorded by me in
respect of Items 1, 2 and 4 to 7 of the suit ‘C’ schedule properties, I
am of the view that the impugned judgment and decree of the First
Appellate Court in respect of these properties deserves to be set
aside and the judgment and decree of the Trial court in respect of
these properties deserves to be restored by decreeing the suit of
the plaintiff in respect of these properties.
The substantial questions of law stand answered
accordingly.
14. In the result, I pass the following:-
ORDER
(i) Appeal is hereby partly allowed.
(ii) The impugned judgment and decree dated 04.01.2011
passed in R.A.No.109/2009 by the III Addl. District Judge, Mysuru,
is hereby set aside in relation to Items 1, 2 and 4 to 7 of plaint ‘C’
schedule properties.
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(iii) The impugned judgment and decree dated 04.01.2011
passed in R.A.No.109/2009 by the III Addl. District Judge, Mysuru,
in relation to suit schedule ‘A’ and ‘B’ properties as well as Item
No.3 of suit ‘C’ schedule properties is hereby confirmed.
(iv) The judgment and decree dated 04.04.2009 passed in
O.S.No.328/2001 by the Small Causes and Civil Judge (Sr.Dn),
Mysore, is hereby restored insofar as it relates to Items 1, 2 and 4
to 7 of plaint ‘C’ schedule properties and consequently, the suit of
the appellant – plaintiff is hereby stands decreed by declaring that
the appellant – plaintiff as well as respondents 1 and 2 –
rd
defendants 1 and 2 are entitled to 1/3 share each in these Items
1, 2 and 4 to 7 of the plaint ‘C’ schedule properties.
(v) The suit of the plaintiff in respect of suit schedule ‘A’ and
‘B’ properties as well as Item No.3 of suit ‘C’ schedule properties is
hereby stands dismissed.
(vi) Registry is directed to draw up the decree accordingly.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BVV/SRL
List No.: 1 Sl No.: 68