IN THE COURT OF 3 RD ADDITIONAL DISTRICT AND SESSIONS JUDGE AT TUMKUR RA 315/2007 APPELLANT
N.ARUNA
& Anr
VS
RESPONDENT
GANGAMMA & ORS
WRITTEN ARGUMENTS FILED ON BEHALF OF APPELLANT:-
SYNOPSIS:- The following following brief points of arguments are raised in
this arguments with clear facts, law and applicable citations. 1. As on the date of filing of suit (07-01-1998) plaintiff was admittedly a married women having married before 30-071994, as such she is not a co-parcener to seek partition from ancestral property or challenge alienations made by her father. (Smt. Nanjamma And Another vs State Of Karnataka And Others (DB) ILR 1999 KAR 1094, 1999 (2) KarLJ 109)
2. Hindu Succession (Amendment) Act, 2005
came into force
on September 9, 2005. For the first time on 09-09-2005 plaintiff became co-parcener by birth. But such right was subjected to the condition that all alienations made before 20-12-2004 cannot be challenged by women co-parcener. (Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr. AIR 2012 SC 169 – 169 – 2011 2011 (9) SCC 788,)
3. As on the date of sale of properties (sold by D-1 to D-6 and D-6 to D-7) in 13-12-1996, & 20-09-1997,
plaintiff is
neither a co-parcener nor having any successor rights due to her father a sole co-parcener is alive on the date of that sale. Instant suit is filed when seller was alive.
4. Whatever may be the family arrangement legally plaintiff has no rights to challenge alienations made by her father in whatever capacity as on the date of suit or subsequent upto the date of 09-09-2005.
5. Estoppel:- When plaintiff by her declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, (admittedly when Form 21 statutory notice is being signed by plaintiff during EX D34 and EX D28) neither she nor her representative shall be allowed in any suit or proceeding between herself and such person or his representative to deny the truth of that thing.
6. Presumption under section 133 of Karnataka land revenue act and probability of factual interpretations regarding EX D34,(Mutation after palupatti) , EX D19 (Appeal of plaintiff dismissed by AC court regarding challenge as to legality in making entry in RTC regarding sale to D-6) &
EX D28 (Tahsildar orders accepting mutation
in the name of purchaser that id D-6) is
not rebutted by plaintiff in
order to succeed in her case.
7. In a suit where government is a party section 80 CPC compliance is mandatory, as such suit should have been dismissed in its entirety at initial stage itself.
8. Party who alleges fraud and fabrication has to prove it strictly. Plaintiff in lower court alleging fraud and fabrication against statutory presumptions failed in her endeavour to prove her case.
9. The EX D20 marked as evidence for collateral purpose of Severance of joint status with specific order by the court cannot be overturned or overlooked in in final stages. Also EX D20(b) signature marked without any objections cannot be overlooked in final stages.
10.
Court has Improperly framed issues.
11.
Documentary presumption cannot be thrown out by
mere statement of pleadings.
12.
When court has marked the document for collateral
purpose, with a specific order, it has to take into such purpose along with other documents at EX D34 and D18, which clearly elicits that palupatti was acted upon by the parties.
13.
If anyone withholds a vital document in order to gain
advantage against the other side, then he would be guilty of playing fraud on the court court
(S.P. Chengalvaraya Naidu vs.
Jagannath, reported in 1994 (1) SCC 1).
14.
False representation even without bad motive is fraud.
(Ram Chandra Singh vs. Savitri Devi and others, reported in (2003) 8 SCC 319)
15. like
Nobody should be permitted to indulge in immoral acts perjury,
prevarication
and
motivated
falsehoods
(Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421)
16.
Post litigation document does not have any value
(STATE OF BIHAR Vs. RADHA KRISHNA SINGH & ORS. AIR 1983 SC 684).
17.
No party should be permitted to travel beyond its
pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it (Kalyan Singh Chouhan vs C.P.Joshi
2011 AIR 1127 =
2011 (2 ) SCR 216)
18.
All "material facts" must be pleaded by the party in
support of the case set up by him (Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu & Ors (2004) 7 SCC 181)
19.
Judicial process should never become an instrument
of oppression or abuse or a means in the process of the court to subvert justice
(Noorduddin v. Dr. K. L. Anand, 1995 (1)
SCC 242)
20.
Partition effected cannot be re-opened unless it is
shown it is obtained by fraud coercion misrepresentation and undue influence
(Ratnam Chettiar & Ors vs S. M.
Kuppuswami Chettiar & Ors 1976 AIR, 1 1976 SCR (1) 863)
21.
Partition deed which was mutually acted upon cannot
be questioned for its non-registration (Amteshwar Anand v. Virender Mohan Singh & Ors; (2006) 1 SCC 148)
22.
Initial burden of proving existence of joint family
property is on plaintiff (D.S. Lakshmaiah & Anr. Vs L. Balasubramanyam & Anr. Reported in AIR 2003 SC 3800).
23.
Coparcenary is a creature of hindu law and cannot be
created by agreement of parties except in the case of reunion (Bhagwan Dayal vs Mst. Mst. Reoti Devi 1962 AIR 287, 1962 1962 SCR (3) 440)
24.
Once a disruption of joint family status takes place,
coparceners cease to hold the property as joint tenants but they
hold
as
tenants-in-common
(Kalyani
v.
Narayanan, reported in AIR 1980 SC 1173) BRIEF PLAINT PLEADINGS IN LOWER COURT:-
1. Suit schedule properties are ancestral and joint family properties of plaintiff and defendant 1 to 5. 2. Defendant 1 is the manager and karta of joint family.
3. Allegations against 1st defendant mismanagement of joint family property to the detriment interest of plaintiff. 4. Allegations of creation of document against defendant 6 and 7. 5. The family properties fetching sufficient income alleged. There is no contracted by joint family alleged. 6. There is no legal necessity to sell suit schedule properties alleged. 7. By virtue of Karnataka amendment act no. 23/94 – 1/6th share claimed by plaintiff. 8. The suit schedule properties are not yet divided between plaintiff and defendant 1 to 5 alleged. 9. Knowledge about previous suit in OS no. 4/1997 and its subsequent
withdrawal
by
payment
of
money
by
1st
defendant alleged. 10.
Government is arraigned as party and injunction relief
is claimed against them. 11.
Plaintiff wants to stop conversion of suit schedule
properties from agricultural purpose to non-agricultural purpose.
EVIDENCE LED IN FAVOUR OF PLEADINGS OF PLAINTIFF:-
1. Plaintiff examined herself as sole witness in favour of her pleadings.
2. Admits her marriage date as November 1990, in two places one in 02-06-2005 cross examination page 2 and 31-052007 cross examination page 10. 3. Although plaintiff took contention that defendants have created some documents, plaintiff never produced and showed before the court which documents were fraudulently executed and which documents are not binding.
4. The plaintiff was wa s much aware about the proceedings of form 21 in EX D 18 & 34 and subsequent notice regarding change of katha and subsequent objections of her sister before Tahsildar Assistant
and
consequent
commissioner.
appeal
No
filed
document
by
her
was
before
placed
by
plaintiff and there is suppression of important material fact. This is due to guilty mind of plaintiff having signed form 21 and kept silent and later raised new pleas.
5. Plaintiff has not produced important documents of suit schedule properties, which came into existence before filing of suit, like EX D18, EX D19, EX D 25, EX D26, EX D28, EX D34.
6. There
is
no
specific
pleading
or
proof
about
which
documents are sought to be not binding on plaintiff share. BRIEF GROUNDS OF CHALLENGE IN THE APPEAL MEMO:-
1. Lower court erred in considering sole evidence of plaintiff in coming to conclusion that Ex. P 20 palupatti is a fabricated document. 2. Lower court made Improper appreciation of facts. 3. Lower court does not considered the conduct of parties before and after filing of suit and possible collusion to defraud honest purchaser. 4. Lower court failed to consider the fact of allotment and division vide palupatti. 5. Lower Court does not considered the facts that on the basis of palupatti katha changed. 6. Lower
Court
does
not
considered
the
fact
that
plaintiff
approached court after 7 years of change of katha and palupatti. 7. Lower
court
failed
to
appreciate
the
fact
transferee/appellant has been misled by parties
that of suit
including plaintiff. 8. There is no proper appreciation of evidence of defendant 1to5. 9. Judgement is against the law.
10. Judgment 10. Judgment is against the facts. 11. Judgment 11. Judgment is against the probabilities of the case. 12. Lower court failed to consider the share specification in the palupatti. 13. Lower court failed to consider the purpose of sale consideration received in the sale deed. 14. Lower court failed to consider the third party rights. 15. Lower court failed to consider severance of status of joint family. FURTHER GROUNDS URGED IN THIS ARGUMENTS BY WAY OF EXPLANATION TO THE GROUND --- “JUDGEMENT IS AGAINST
LAW, FACTS AND PROBABILITIES OF THE CASE”:CASE”: 1. The
lower
court
judgement
dated
30-08-2007,
before
considering women as a co-parcener of joint family property failed to consider the statutory bar in questioning sales done before 20-12-2004. The Central Act of 2005 also mentions in proviso to Section 6(1) that nothing contained in the sub−section 6(1) shall affect or invalidate any disposition or alienation or including any partition or testamentary or disposition of property which have taken place before 20 day of December 2004. Hence partially the sale deeds executed before 20-12-2004 are hit by the above law. The sale done in 13-12-1996 is legally cannot be questioned by women coparcener.
2. The lower court failed to consider the probable fact that as on the date of filing of suit plaintiff is neither the co-parcener as per 1990 karnataka amendment. The lower court failed to consider the Rights of lone co-parcener/ karta (Defendant-1 in lower court) to sell his properties.
3. Lower court relied on single stray sentence in the document EX P35, without looking into the whole portion and also interpreted EX D20 document in an improbable way. The EX P35
and
pleadings
and
deposition
of
all
the
parties
themselves show that plaintiff and all other defendants have
accepted payment of consideration to the family and there is only in-built dispute as to the sharing of properties.
4. Lower court failed to consider the relevancy of palupatti dated 10-12-1992, which is a deed executed between the members of a family for family settlement although some of the women including plaintiff are not co-parceners as on that date.
5. Lower court failed to consider the fact that alleged palupatti is acted upon vide EX D18 & EX D34, In that exhibits it is specifically reported by village accountant that all named persons including plaintiff has given statement and signed Form-21 and after publishing it in village chavadi katha was changed as per rules. The said Mutations is not challenged by plaintiff. The only mutations un-successfully challenged by plaintiff is the vendors mutations in MR 17/96-97 (as elicited in EX D19). Hence the fact of acted upon palupatti is not challenged before any authorities by plaintiff. The only intention of challenging purchasers Mutations and land conversions vide EX D19 & EX P31 shows that plaintiff has ulterior motive in denying the signature of her in EX D 20.
6. Lower
court
failed
to
appreciate
the
relevancy
and
presumption of entries in revenue records and the burden of proof to bring facts contrary to such entries. When acted upon Mutation in EX D34 is not challenged by the plaintiff and the facts stated therein remained un-disturbed, the relevancy of such facts and documents to be presumed to be correct by the lower court.
7. Lower court failed to appreciate the mischief played by parties and their subsequent conduct which amounts to estoppel. Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Indian Evidence Act, 1872 (in short 'Evidence Act') which lays down that when one person has by his declaration, act or omission caused or
permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. Here in the instant case plaintiff has represented to authorities by receiving notice for change of katha in her name and accepted mutation in her favour and suppresses that document clandestinely and still this day she is representing to the world that what is stated in MR 47/9596 as quoted in EX D 19 & 34 which is one and same are legally done.
HOW LOWER COURT ERRED IN ANALYSING THE PLEADINGS AND FACTS IN A PROPER MANNER:-
1. The joinder of Government as a 8 TH AND 9 TH Defendant party to the suit and third relief claimed in the suit to stop conversion of land shows, the intention of the suit is to attack the sale deed executed by 1 st defendant (of lower court) in favour of 6th defendant. The non-compliance of section 80 CPC is overlooked by lower court.
2. The conversion of land increases the value of land, as on the date of filing of suit the tact full pleading of plaintiff “if any documents documents are created” shows plaintiff has not come with full facts and clean hands to show her rights.
3. The lower court has not verified properly the revenue record that is mutation extract MR 47/95-96 (EX D18 & EX D34),
wherein the record speaks of “J®ègÀÆ
M¦à ºÉýPÉ PÉÆnÖgÀÄvÁÛgÉ,
ºÁUÀÆ ¥sóÁgÀA 21 PÉÌ ¸À» ºÁQgÀÄvÁÛgÉ”. This
is the record having
presumptive value under section 133 of Karnataka land revenue act. Even objections and appeal is not filed against such record. The only record challenged by plaintiff is the purchasers
Mutation
order
in
MR
17/96-97
and
its
presumptive value is upheld by orders as shown in EX D28 & EX D19. Anything contrary to such records shall be established by person who pleads fraud, forgery, fabrication etc.
4. The burden of establishing fraud and forgery lies on plaintiff to prove strictly in accordance with law. The plaintiff is in possession and knowledge of how she is making her signatures from her adolescence. No record from her school records or employment records produced to show that she is not signing in kannada. Admittedly from depositions she is a graduate, she had SSLC marks card which contains her signature. She is a government servant her signature before joining service and during graduation are well within her reach. The best pieces of evidence with plaintiff only. Plaintiff cannot be allowed to suppress her own documents and throw out such presumption of records by mere denial & statement in pleadings.
5. The fraud and fabrication is alleged by plaintiff and she has to prove it with strict facts and documents. The silence of plaintiff in taking any action against such alleged forgery itself shows plaintiff is acting at her whims and fancies just to
harass
bonafide
purchasers.
Not
even
challenged
mutations done on alleged Palupatti as shown in EX D18 & EX D34. She cannot throw away one document and accept another which are of same related transaction.
6. Lower court should not have suspected from whose custody such original Palupatti produced. When it is not registered it should have verified only aspect that whether it is acted
upon by parties or not. To that aspect lower court has made a specific order in page 3 and 4 of cross of DW1 dated 24-112005. “CzÀ£ÀÄß
¤±Á£ÉAiÀiÁV UÀÄjw¸À®Ä §gÀĪÀÅ¢®èªÉAzÀÄ ªÁ¢ ªÀQîgÀÄ
ªÁ¢¸ÀÄvÁÛgÉ. PÁgÀtªÉãÉAzÀgÉ ¸ÀzÀj zÁR¯É jf¸ÀÖqïð zÁR¯É C®è, PÀrªÉÄ ªÀiË®åzÀ ¸ÁÖA¥ï ¥ÉÃ¥Àgï ªÉÄÃ¯É §gÉAiÀįÁVzÉ ªÀÄvÀÄÛ »AzÉ ªÀiÁqÀ¯ÁVzÀÝ PÀÄlÄA§zÀ ¨ÁUÀzÀ §UÉÎ ªÀiÁrPÉÆAqÀ zÁPÀ¯É DVgÀĪÀÅ¢®è DzÀÝjAzÀ D zÁR¯ÉAiÀÄ£ÀÄß ¤±Á£ÉAiÀiÁV UÀÄgÀÄw¸À®Ä §gÀĪÀÅ¢®èªÉAzÀÄ ªÁ¢¸ÀÄvÁÛgÉ. .. .. .. .. .. G¨sÀAiÀÄ ªÀQîgÀ ªÁzÀªÀ£ÀÄß PÉüÀ¯Á¬ÄvÀÄ, zÁR¯ÉAiÀÄ£ÀÄß ¥Àj²Ã°¸À¯Á¬ÄvÀÄ. ¥Àæ¸ÀÄÛvÀ zÁR¯ÉAiÀÄ£ÀÄß 7£Éà ¥ÀæwªÁ¢ F ¸ÁQëUÉ vÉÆÃj¹, D zÁR¯É §UÉÎ ¥Àæ±Éß ªÀiÁqÀÄvÁÛgÉ. ¸ÁQë D zÁR¯É M¥ÀÄàvÁÛgÉ. C®èzÉ CzÀÄ «¨sÁUÀ ¥ÀvÀæ ¸ÉPÀë£ï 17 jf¸ÉÖçõÀ£ï DPïÖ ¥ÀæPÁgÀ £ÉÆAzÁªÀtÂAiÀiÁUÀ¨ÉÃPÉA§ÄzÀÄ ¸Àj. DzÀgÉ, PÁ£ÀƤ£À°è «¨sÁUÀ ¥ÀvÀæUÀ¼ÀÄ PÀÄlÄA§zÀ°è ¸ÀzÀ¸ÀågÀÄ ¥ÀævÉåÃPÀªÁVgÀĪÀ §UÉÎ vÉÆÃj¸ÀĪÀ G¯ÉèÃR PÀAqÀÄ §AzÀ°è D zÁR¯ÉAiÀÄ£ÀÄß PÉƯÉÊmÁgÀ¯ï ¥ÀgÀ¥À¸ÀÄUÁV ¤±Á£ÉAiÀiÁV UÀÄgÀÄw¸À§ºÀÄzÁVgÀÄvÀÛzÉ. ¸ÁQëAiÀÄ ¥ÁnøÀªÁ°£À°è F zÁR¯É M¦àPÉÆArgÀĪÀ PÁgÀt ªÁ¢ ªÀQîgÀ vÀPÀgÁgÀ£ÀÄß ¥ÀÄgÀ¸ÀÌj¸À®Ä ¸ÁzÀå«®è. DzÀÝjAzÀ CªÀgÀ PÉÆÃjPÉAiÀÄ£ÀÄß wgÀ¸ÀÌj¹ zÁR¯ÉAiÀÄ£ÀÄß ¤±Á£ÉAiÀiÁV UÀÄgÀÄw¸À®Ä C£ÀĪÀÄw ¤ÃqÀ¯ÁVzÉ. ¸ÀzÀj zÁPÀ¯ÉAiÀÄ£ÀÄß ¤±Á£É r-20 JAzÀÄ UÀÄwð¸À¯ÁVzÉ. ” When court has marked the document for collateral purpose, with a specific order, it has to take into such purpose along with other documents at EX D34 and D18, which clearly elicits that palupatti was acted upon by the parties. parties. As per deposition of defendant witness they accept that original EX D20 is with D1 and there is much probability that such record in original to have handed over from D1 to D6.
7. There is an allegation in the plaint that 1st defendant is attempting to alienate suit schedule properties. Even in the plaint of OS 4/1997, has stated clearly there is a sale in favour of 6th defendant. Plaintiff has suppressed such sale and filed suit in the above case alleging only fraud and forgery. So plaintiff herself know the facts of palupatti and sale deed allege it as a forged and fraud has to prove it how it is forged and how it amounted to fraud. The presumption
of
registered
document
that
is
sale
deed
cannot
be
overlooked by mere statement of allegations.
8. The plaintiff overall can allege un-equal distribution of joint family asset and has to seek setting aside of acted upon palupatti, if she is co-parcener and has any rights in the family, which has not been done by them. The matter which is settled with legal procedure has to be specifically asked to be set aside by following suitable procedure under law. Without asking such relief with specific pleading and proving the fraud and forgery within the family members, plaintiff is not entitled to victimise the outsider of the family.
9. The statutory authority endorses on an official record EX D18 & D34, stating all have signed form 21, the relevancy of such endorsement or such documents is not challenged any where, hence no relief can be given to plaintiff on mere allegations.
10.
Plaintiff has kept her silence why she absented in the
suit OS 4/1997, the relevancy of such conduct imputes different probability when compared to the allegations in the pleadings of plaintiff.
11.
Plaintiff wants to utilise her rights to seek partition/
equal partition after turning back towards the deed created by their own family members including herself. There is no single paper of signature produced by plaintiff to prove that even before filing of suit she was in the habit of signing in English, she is the best custodian of such records, as she is working with government, she may have produced any such available old records. Mere making of statement for creating litigation cannot be believed by the court to come to such vague conclusion.
12.
If the relief is given to plaintiff without recognising the
rights of purchasers 6th and 7th defendants, there will be
grave abuse of process of court, no value for any official records, encourage every dis-honest litigant to change his stand to suit his convenience.
13.
At-least court should have recognised the rights of
kartha of joint family to sell, if it had come to the conclusion of existence of joint family and at least court could have verified the facts from all party pleadings and evidence that there is no evidence as to illegalities and vices of alleged kartha, it should have allotted the sold land to the share of 1st defendant (alleged Kartha), when there is admitted consideration and its payment and when there is admitted legal necessity, by all the parties.
14.
Lower court failed to draw proper issues in the suit.
When there is a pleading of being acted upon palupatti by even other defendants, it should have imposed burden on plaintiff to prove. Proper issues are as follows:-
1). Whether plaintiff proves that she is co-parcener as per 1990 amendment act.? 2). Whether Plaintiff proves that she is entitled to challenge the co-parcenary property alienations made in 13- 12-1996? 3). Whether plaintiff proves that suit schedule properties are still joint family properties? 4). Whether plaintiff proves that kartha of family has abused his power and acting detrimental to the affairs of the family? 5). Whether plaintiff proves that defendants 1 to 6 have created any forged or fraudulent deeds against her interests? 6). Whether plaintiff rebutes the presumption of section 133 in reference to revenue records? 7).
Whether
defendant
1
to
5
proves
that
there
is
panchayathi palupatti dated 10-12-1992 and severance of joint status from that day? 8). Whether defendant 6 proves that they brought the land for valuable consideration and there is legal necessity?
9). Whether the plaintiff proves that she is still entitled to reopen the acted upon partition on the principles of equity? 10). Whether the plaintiff entitled for any relief? 11). To what decree or order?
15.
The lower court should not have relied on the
misleading interpretations and submissions of Learned Counsel of plaintiff regarding striking of BG initial in the palupatti, - in all probability no fraud creator will do such mistake. That shows some fraudulent intention on the part of person who signed it. No where in plaintiff arguments the relevancy of mutation in EX D18 & D34 is raised by the counsel. This shows deliberate silence as to acted upon nature of palupatti.
16.
The reliance of only one single statement of EX P35
without reading its full content is not good gesture shown by lower court. There is no document or evidence to show that statement is actually made by defendant-1. The other statements like involvement of plaintiff and defendants to sell the land to this appellant’s appellant ’s vendor vendor is not taken into consideration. Which prima facie shows that for monetary gain parties have been using their own representations to the world in one side and backtracking from it on other side.
17.
Court should not have trusted EX P35 which is
created after litigation started in the above case to come to conclusion that EX D20 is a concocted and fabricated document. The relevancy of EX D 18 & D 34 under the law cannot be overthrown by
EX P 35 that to after raising
litigations herein. The real intention of parties in raising such
documents
of
post
litigation,
by
suppressing
documents of past litigation shows primary motive of monetary gain and unclean hands of plaintiff and later colluded defendants 1 to 5.
18.
The allegation of concocted and fabricated has to be
proved
with
independent
witness
and
proof
beyond
reasonable doubt and with the help of tallying with the documents previous to litigation.
19.
Although lower court quoted Judgment of
Honble
Supreme Court in the case of Subodh kumar in page number 30 & 31 of its judgement and Hon’ble court failed to take into account the following words of the Judgment “Such alienations would be void except the extent of manager share …… The purchaser could get only the manager man ager share.” share.” To that extent also lower court conclusions are bad in law.
20.
When seller himself along with other members of
family accept in their pleadings that there is legal necessity to sell the properties and EX P35 produced by plaintiff itself shows such consideration is shared by all including plaintiff, then there is no need for this appellant to prove legal necessity. Plaintiff herself should prove how her father at the age of 75 years started for the first time to mismanage the properties. Is it possible for such old man to mismanage and have any unlawfull and illegal habits at that stage all of a sudden. If there is no equitable distribution that does not mean imputations of such nature can be made against such a man at that stage.
21.
The partition is already made in 1992 when the
amendment act of Karnataka was not in force. There is no discrimination partition
in
amendment
regarding Karnataka
was
made
registered
and
amendment. void
to
the
un-registered
The extent
Karnataka of
central
government amendment which was enforced in 2005. The central act specifically exempts all the registered transfers (sale deeds)
made prior to 20-12-2004. Which in all
probability plaintiff have no legal rights to challenge such alienations from the date of suit to the subsequent changes in law.
22.
Karnataka Amendment Act, 1990, which disentitles a
daughter married prior to coming into force of Karnataka Amendment Act, 1990 from being entitled to be a coparcener as per Section 6−A(d), The State Amendment Act of o f 1990, which was brought into force from 30.7.1994. It is an undisputed fact as per records that plaintiff marriage has been performed. Plaintiff in her deposition dated 02-06-2005 cross examination portion clearly states that “ 1990
£À°è £À£Àß ªÀÄzÀÄªÉ ©.PÉ. ¸ÉÆêÀıÉÃRgï gÀªÀgÀ eÉÆvÉ DVzÉ ”.
gÀ £ÀªÀA§gï
Plaint copy
deliberately hides the name of her husband and marriage status. Hence in all probability the plaintiff is not aa coparcener on the date of alleged sale as per Karnataka amendment.
23.
The EX P 33 the plaint copy in OS 4/1997 shows
plaintiff’s husband name. name. This shows plaintiff made a deliberate and tactful attempt to shield her marriage status before the lower court. When there is a specific law that women married before act came to force not entitled to share in ancestral and joint family properties. There is no need for written statement pleadings pleadings as to it.
Plaintiff should give
clear facts of her date of marriage and other facts to get rights under such law. Suppression of such material facts is a fraud played on courts.
24.
The Central Act of 2005 also mentions in proviso to
Section 6(1) that nothing contained in the sub−section 6(1) shall affect or invalidate any disposition or alienation or including any partition or testamentary or disposition of property which have taken place before 20 th
day of
December 2004. Hence partially the sale deeds executed before 20-12-2004 are hit by the above law. Hence even if plaintiff establishes that she is entitled to partition as per amendments of Karnataka and Central government, her rights are hit by above provisions and Plaintiff is not entitled
to any decree against the alienations made in favour of 6 th and 7th defendants.
25.
Lower court completely relied on the statement and
pleading of plaintiff to come to conclusion that there is no earlier partition. The relevancy of mutation record is completely ignored as to whether the alleged palupatti (marked for specific purpose with specific order) is acted upon or not. Even if the stray sentence of plaintiff shows she is suppressing material facts before the court then stray sentence of plaintiff defeats her own case.
26.
The court failed to appreciate all set of probable facts
out of pleadings and depositions. The court failed to appreciate the conduct of parties when looked into their conduct in suppression of material facts, conduct in other proceedings, conduct in revenue proceedings.
27.
The observation of lower court in page 26 of the
judgment about revenue court appeal dismissed in RRT 106/98-99 (EX D19) shows there is no violation of any lawfull procedure followed in changing katha as per sale deed. Although it’s an admitted fact that change of katha is challenged by plaintiff and she lost her appeal. What does that show? Even plaintiff in her deposition accepts service of notice and not objecting to such change. That shows plaintiff failed to show any illegality in change of katha. Such admitted fact goes with this appellant.
Such fact is
improperly appreciated by the lower court in favour of plaintiff.
28.
The plaintiff is not an un-educated lady she is
government servant. The following Contrary versions of plaintiff defeat’s her own case:case:-
1. On 02-06-2005 cross of PW1 in page 2 “zÁªÁ
LlA £ÀA. 1 gÀ°è
PÁt¹gÀĪÀ ¸ÀªÉð £ÀA. 11/1 ªÀÄvÀÄÛ 11/2 gÀ°è EgÀĪÀ 12 UÀÄAmÉ ¨sÀÆ«ÄAiÀÄ£ÀÄß 6
£Éà ¥ÀæwªÁ¢ UÉÆÃ¥Á®PÀȵÀÚ Rjâ ªÀiÁrzÁÝgÉ JAzÀgÉ UÉÆwÛ®è. ” – In facts disclosed and relied relied by plaintiff plaintiff in Ex P 31 shows the other thing that she had knowledge of such sale. Why plaintiff deposed falsely about such question?
2. On 13-06-2005 cross of PW1 in page 5 & 6 “£Á£ÀÄ
vÀPÀgÁgÀÄ
¸À°è¹gÀ°®è. .. .. .. ¥Àæ«ÄüÁ ¸À°è¹zÀÝ vÀPÀgÁgÀÄ ¨Á§ÄÛ £À£ÀUÉ £ÉÆÃnøÀÄ §A¢vÀÄÛ. D £ÉÆÃnøÀ£ÀÄß £Á£ÀÄ vÉUÉzÀÄPÉÆArzÉÝãÉ. vÉUÉzÀÄPÉÆArzÉÝãÉ.
D £ÀAvÀgÀ £Á£ÀÄ
vÀºÀ¹Ã¯ÁÝgï ªÀÄÄAzÉ vÀPÀgÁgÀÄ ¸À°è¹®è. UÉÆÃ¥Á®PÀȵÀÚ ªÀÄvÀÄÛ AiÀĸÀ¹é¤ gÀªÀgÀ ºÉ¸ÀjUÉ SÁvÉUÀ¼À£ÀÄß §zÀ¯ÁªÀuÉ ªÀiÁrgÀĪÀ §UÉÎ £Á£ÀÄ J.¹ AiÀĪÀgÀ ªÀÄÄAzÉ C¦Ã®Ä ¸À°è¹zÉÝãÉ.”
This
shows
plaintiff
had
sufficient
knowledge of sale and change of katha, she has not filed any objections to it. Only B.G. Pramiladevi has filed objections to such sale. Later matter compromised. Then appeal filed by plaintiff in RRT 106/98-99, which was also dismissed. This clearly shows that plaintiff with all knowledge of such sale in 1996 itself choose to remain silent and later with much after thought with new grounds have hosted civil suit by suppressing many material facts.
3. On 17-07-2007 cross of PW1 in page 11 “zÁªÁ
ºÁPÀĪÀ
¸ÀAzsÀ§ðzÀ°è zÁªÁ d«ÄäUÉ ¸ÀA§AzsÀ ¥ÀlÖ SÁvÁ AiÀiÁgÀÄAiÀiÁgÀ ºÉ¸Àj£À°è EvÉÛAzÀÄ £Á£ÀÄ £ÉÆÃrgÀÄvÉÛÃ£É DzÀgÉ ¸ÁQëAiÀÄÄ ªÀÄÄAzÀĪÀjzÀÄ vÀºÀ¹Ã¯ÁÝgï PÀZÉÃjAiÀÄ°è Dgï.n.¹ §UÉÎ PÉøÀÄ ºÀÆrgÀÄvÉÛÃ£É DzÀgÉ CzÀÄ E£ÀÄß wêÀiÁð£ÀªÁVgÀĪÀÅ¢®è. .. .. .. .. .. DzÀgÉ vÀºÀ¹Ã¯ÁÝgï £ÁåAiÀiÁ®AiÀÄzÀ°è ªÀÄÆ® zÁªÉAiÀÄ°è K£ÀÄ ¤zÁðgÀªÁUÀÄvÀÛzÉÆà D §UÉÎ wêÀiÁð¤¹PÉƽî JAzÀÄ £ÀªÀÄUÉÆAzÀÄ »A§gÀºÀ PÉÆnÖzÀÝgÀÄ. D »A§gÀºÀªÀ£ÀÄß £Á£ÀÄ F £ÁåAiÀiÁ®AiÀÄzÀ°è ºÁdgÀÄ¥Àr¹gÀÄvÉÛãÉ.”
Here plaintiff attitude can be seen in
suppression of real facts and hiding of material facts even at that late stages. There is no single document of Tahsildar endorsement produced by plaintiff. hands of plaintiff.
This shows unclean
4. On 21-07-2005 cross examination of PW1 page 9 “vÁ
25-05-
2005 gÀAzÀÄ Dgï.Dgï.n £ÀA. 106/98-99 gÀ°è£À ¥ÀæPÀgÀt ªÀeÁ DVgÀĪÀ «ZÁgÀ UÉÆwÛzÉ. CzÀgÀ «gÀÄzÀÝ C¦Ã®Ä ¸À°è¹zÉÝãÉ. D §UÉÎ zÁR¯É ºÁdgÀÄ ªÀiÁrzÉÝãÉ.” This shows sho ws
Plaintiff knowingly hides many things
before the court. Speaks falsely having submitted documents but still hides it.
29.
The following averments of
defendants explains the
prima facie defence of 6th and 7th defendants:-
1. 22-09-2005 chief examination of DW1 page 1 “ªÁ¢
UÀAUÀªÀÄä¤UÉ PÀ£ÀßqÀ ªÀÄvÀÄÛ EAVèÃµï ¨sÁµÉ JgÀqÀÄ w½¢zÉ. CªÀgÀÄ ¸À» PÀ£ÀßqÀzÀ°è ¥Á®Ä
¥ÀnÖUÉ ¸À» ªÀiÁrzÁÝgÉ. ” counsel
of
This is not specifically disputed by
plaintiff,
in
page
4
of
24-11-2005
cross
examination the PW1 signature is marked as EX D 20(b). There is no objections to marking of the same. Once such signature issue is admitted and marked, plaintiff counsel cannot dispute it in argument stage. 2. 22-09-2005 chief examination of DW1 page 1 “ C¸À®Ä
¥Á®Ä¥ÀnÖ £À£Àß vÀAzÉAiÀÄ ªÀÄÆ®PÀ PÉÆÃnðUÉ §A¢zÉ. ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß d«ÄãÀÄ Rjâ¹PÉÆAqÀ UÉÆÃ¥Á®PÀȵÀÚ PÉÆÃnðUÉ ºÁdgÀÄ ¥Àr¸À¨ÉÃPÉAzÀÄ
vÉUÉzÀÄPÉÆArzÁÝgÉ.” This shows palupatti came to the hands
of D-
6 through D-1.
7£Éà ¥ÀæwªÁ¢ ¨sÀÆ«ÄAiÀÄ£ÀÄß ªÀåªÀ¸ÁAiÉÄÃvÀgÀ GzÉÝñÀPÉÌ ¥ÀjªÀwð¹PÉÆArzÁÝgÉ JA§ÄzÀÄ ¸Àj. .. .. .. .. £À£Àß vÀAzÉ ªÀiÁgÁl ªÀiÁrzÀ ¸ÀéwÛ£À°è 7 £Éà ¥ÀæwªÁ¢
3. 24-11-2005 cross examination of DW1 page 5 & 6 “
¸Áé¢üãÀzÀ°èzÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸Àj.” This
shows plaintiff is not in
joint possession of all the suit schedule properties as on the date of filing of suit.
4. 25-11-2005 cross examination of DW1 page 10 “ zÁR¯ÉAiÀÄ£ÀÄß
ªÀÄvÀÄÛ ¸À»UÀ¼À£ÀÄß £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß UÀAqÀ ¸ÉÃj ¸Àȶ׹zÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ºÁUÉà ¸Àȶ׹zÀ ¸ÀªÀÄAiÀÄzÀ°è £ÁªÉà UÀAUÀªÀÄä JAzÀÄ ¸À»AiÀÄ£ÀÄß wzÀÄÝ¥Àr ªÀiÁrzÉÝÃªÉ JA§ÄzÀÄ ¸ÀjAiÀÄ®è” This type of proto type allegations is
made
to
all
defendant
witness,
no
where
specifically
suggested to any witness that “Gangamma signature marked as Exhibit D 20(b) is forged one” one ”, “Gangamma signature is not in kannada but in english”. english”. No where it is suggested that “despite knowledge about gangamma’s signature witness has claimed wrong signature as that of gangamma” gangamma”. When such suggestions and objections are not taken specifically by plaintiff it is deemed admission that signature is that of plaintiff. 5. 24-11-2005 cross cross examination of DW1 page 11 “UÀAUÀªÀÄä£À
ªÀÄzÀÄªÉ 1990 gÀ°è DVvÀÄÛ DPÉAiÀÄ ªÀÄzÀĪÉUÉ ªÀiÁqÀ¯ÁVzÀÝ ¸Á® wÃj¸À®Ä £À£Àß vÀAzÉ d«ÄãÀÄ ªÀiÁjzÀÝgÀÄ. £À£Àß vÀAzÉ ¸Á® ªÀiÁrzÀÝgÀÄ CzÀgÀ°è M§âgÀ°è MAzÀÄ ®PÀë 61 ¸Á«gÀ gÀÆ ¸Á® ªÀiÁrzÀÝgÀÄ. ¨ÉÃgÉ E£ÁågÀ°è ¸Á® ªÀiÁrzÀÝgÀÄ JAzÀÄ ºÉüÀ®Ä DUÀĪÀÅ¢®è. D ¸Á® ªÀiÁr 18 ªÀµÀðUÀ¼ÁVzÉ. UÀAUÀªÀÄä£À ªÀÄzÀÄªÉ ªÉÄÊzÁ¼ÀzÀ°ègÀĪÀ UÀAqÀ£À ªÀÄ£ÉAiÀÄ°è D¬ÄvÀÄ. D ªÀÄzÀÄªÉ JgÀqÀÄ ¢£À £ÀqɬÄvÀÄ. D ªÀÄzÀĪÉAiÀÄ£ÀÄß UÀAqÀ£À ªÀÄ£ÉAiÀĪÀgÀ RZÀÄð ªÀiÁr ªÀÄzÀÄªÉ ªÀiÁrzÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è”. This shows there is legal necessity to
sell properties
to D-6 contrarily plaint pleadings shows that there is rich income in suit properties, but plaintiff changes her stand in cross examination that D-1 is poor to do the marriage of plaintiff and plaintiff husband himself arranged the marriage expenses. This shows unclean hands of plaintiff. 6. 24-11-2005 cross examination of DW1 page 11 “£Á£ÀÄ
ªÀÄvÀÄÛ £À£Àß UÀAqÀ 6£Éà ¥ÀæwªÁ¢¬ÄAzÀ ºÀt ¥ÀqÉzÀÄPÉÆAqÀÄ £À£Àß vÀAzÉ ºÉ¸Àj£À°èzÀÝ ¨sÀÆ«ÄAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁr¹zÉÝÃªÉ JA§ÄzÀÄ ¸ÀjAiÀÄ®è ” .. .. .. “£À£Àß vÀAzÉ ºÉ¸Àj£À°è EzÀÝ ¨sÀÆ«ÄAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁr £ÁªÉà ºÀtªÀ£ÀÄß ¨sÀÆ«ÄAiÀÄ C©üªÀÈ¢ÝUÉ G¥ÀAiÉÆÃV¹PÉÆArzÉÝÃªÉ JA§ÄzÀÄ ¸ÀjAiÀÄ®è. GvÀÛªÀĪÁzÀ ¨sÀÆ«ÄUÀ¼À£ÀÄß ¤±Á£É r-20 gÀ°è £ÁªÀÅ ¥ÀqÉzÀÄPÉÆAqÀÄ, ªÁ¢UÉ ªÉÆøÀ ªÀiÁqÀ®Ä ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è.”
The plaintiff although
raises in her pleadings about fabrication of documents on the part of 6 th defendant and other defendants, here in cross examination plaintiff specifically allege and accepts that the consideration is paid by 6 th defendant in the sale deed, and her stand is specific that there is some grievance in distribution of properties against DW1 her sister. This does not entitle
plaintiff
to shift her stand and obstruct and
harass bonafide purchaser as done in EX P 35, EX D 19, EX D 33.
Where fore from all the facts and probabilities the Honble court may be pleased to set aside the lower court decree against appellants herein and Defendants 6 & 7 in lower court and declare this appellants as bonafide purchasers by allowing this appeal as prayed in appeal memo and to any such other orders as suitable in the ends of justice.
Date: 08-11-2013 Tumkur
Advocate for appellants
IN THE COURT OF 3 RD ADDITIONAL DISTRICT AND SESSIONS JUDGE AT TUMKUR RA 315/2007 APPELLANT N.ARUNA & Anr
VS
RESPONDENT GANGAMMA & ORS
INDEX OF CASE LAWS SUBMITTED NO
PARTICULARS
1
STATE OF BIHAR VS. RADHA KRISHNA SINGH & ORS. AIR 1983 SC 684
2
KALYAN SINGH CHOUHAN VS C.P.JOSHI 2011 AIR 1127
3
MAHADEORAO SUKAJI SHIVANKAR VS. RAMARATAN BAPU & ORS (2004) 7 SCC 181
4
NOORDUDDIN V. DR. K. L. ANAND, 1995 (1) SCC 242 : (1994 AIR SCW 5093)
5
GOPAL KRISHNAJI KETKAR V. MAHOMED HAJI LATIF AND ORS. AIR 1968 SC 1413
6
RATNAM CHETTIAR & ORS VS S. M. KUPPUSWAMI CHETTIAR & ORS 1976 AIR, 1
7
AMTESHWAR ANAND V. VIRENDER MOHAN SINGH & ORS; (2006) 1 SCC 148
8
D.S. LAKSHMAIAH & ANR. VS L. BALASUBRAMANYAM & ANR. REPORTED IN 2003 AIR 3800 AND DANDAPPA RUDRAPPA HAMPALI AND ... VS RENUKAPPA ALIAS REVANAPPA AIR 1993 KANT 148
9
BHAGWAN DAYAL VS MST. REOTI DEVI 1962 AIR 287, 1962 SCR (3) 440
10
KALYANI V. NARAYANAN, REPORTED IN AIR 1980 SC 1173
11
SMT. NANJAMMA AND ANOTHER VS STATE OF KARNATAKA AND OTHERS (DB) ILR 1999 KAR 1094, 1999 (2) KARLJ 109
12
GANDURI KOTESHWARAMMA & ANR. VS CHAKIRI YANADI & ANR. AIR 2012 SC 169 – 2011 (9) SCC 788
13
S.P. CHENGALVARAYA NAIDU VS. JAGANNATH, REPORTED IN 1994 (1) SCC 1
14
RAM CHANDRA SINGH VS. SAVITRI DEVI AND OTHERS, REPORTED IN (2003) 8 SCC 319
15
CHANDRA SHASHI V. ANIL KUMAR VERMA, (1995) 1 SCC 421
DATE:08-11-2013 TUMKUR
ADVOCATE FOR APPELLANT
IN THE COURT OF 3 RD ADDITIONAL DISTRICT AND SESSIONS JUDGE AT TUMKUR RA 315/2007 APPELLANT
VS
N.ARUNA
RESPONDENT GANGAMMA & ORS
IN REFERENCE TO THE GROUNDS URGED IN WRITTEN ARGUMENTS APPELLANT RELIES ON THE FOLLOWING FOLLOWING CITATIONS:-
1. POST LITIGATION DOCUMENT DOES NOT HAVE ANY VALUE:IN a case of STATE OF BIHAR Vs. RADHA KRISHNA SINGH & ORS. AIR 1983 SC 684 it was observed as as follows: “Admissibility of a document is one thing thing and its probative value, quite another: a document may be admissible and yet may not carry any conviction and weight or its probative value may be nil. It is also well settled that statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature.
The admissibility of such declarations is, however,
considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must not only be before the actual existence of any controversy, but should be made even before the commencement of legal proceedings. This position position however cannot hold hold good of statements made post litem motam which would be clearly inadmissible in evidence. The reason for this rule seems to be that after a dispute has begun or a legal proceeding is about to commence, the possibility of bias, concoction or putting up false pleas cannot be ruled out.”
2. NO PARTY SHOULD BE PERMITTED TO TRAVEL BEYOND ITS PLEADING AND THAT ALL NECESSARY AND MATERIAL FACTS SHOULD BE PLEADED BY THE PARTY IN SUPPORT OF THE CASE CASE SET UP BY IT In THE SUPREME COURT OF INDIA INDIA Decision in a case of election election matter, in Kalyan Singh Chouhan vs C.P.Joshi 2011 AIR 1127 = 2011 (2 ) SCR 216 = 2011 (11 ) SCC 786, Justice P. SATHASIVAM SATHASIVAM & Justice Dr. B.S. CHAUHAN CHAUHAN observed following principles of case cas e law on “Importance of pleadings” as also applicable to civil court proceedings is discussed discussed with following citations:citations:- This Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242 held as under: "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support support of the case set up by it. The object object and purpose of pleading is to to enable the adversary party to know the case it has to meet........ In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question." This Court in Bachhaj Nahar v. Nilima Nilima Mandal & Ors. , AIR 2009 SC 1103, held as under: "The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the the parties, or its own attention attention on that claim or relief, by framing an appropriate issue........ Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, prayer, court fee paid, evidence let let in, etc."
3. ALL "MATERIAL FACTS" MUST BE PLEADED BY THE PARTY IN SUPPORT OF THE THE CASE SET SET UP BY HIM In Mahadeorao Mahadeorao Sukaji Shivankar Shivankar Vs. Vs. Ramaratan Bapu Bapu & Ors (2004) 7 SCC 181"material 181"material facts" are facts upon which the plaintiff's plaintiff's cause of action or defendant's defence depends. Broadly speaking, all primary or basic facts which are necessary either to prove the cause of of action by the plaintiff or defence by the defendant are "material facts". Material Material facts are facts which, if established, would would give the petitioner the relief relief asked for. But again, what what could be said to be material facts would depend upon the facts of each case and no rule of universal universal application can be laid down. down. In this regard In support of written statement averments and objections to IA this defendants rely on the decision of Supreme court to show balance of convenience on defendant side. In Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511, Supreme Court again reiterated the distinction between `material facts' and `material particulars' and observed observed as under:
"51. A distinction distinction between between "material "material facts" and
"particulars", however, must not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. "Particulars", on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. "Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise. 52. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."
4. JUDICIAL PROCESS SHOULD NEVER BECOME AN INSTRUMENT OF OPPRESSION OR ABUSE OR A MEANS IN THE PROCESS OF THE COURT TO SUBVERT JUSTICE
Noorduddin v. Dr. K. L. Anand, 1995 (1) SCC 242 : (1994 AIR SCW 5093) the Apex Court observed as under (at page 5099 of AIR SCW): "The object of law is to mete out justice. Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Any weakening like in the judicial process would rip apart the edifice of justice and create a feeling of disillusionment in the minds of the people of the very law and courts. The rules of procedure have been devised as a channel or a means to render substantive or at best substantial justice which is the highest interest of man and almighty for the mankind. It is a foundation for orderly human relations. Equally the judicial process should never become an instrument of oppression or abuse or a means in the process of the Court to subvert justice."
5. COURT MAY DRAW AN ADVERSE INFERENCE IF HE WITHHOLD IMPORTANT DOCUMENTS IN HIS POSSESSION
Observations of the Hon'ble Supreme Court in the case of Gopal Krishnaji Ketkar v. Mahomed Haji latif and Ors. AIR 1968 SC 1413: Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withhold important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.
6. PARTITION EFFECTED CANNOT BE RE-OPENED UNLESS IT IS SHOWN
IT
IS
OBTAINED
BY
FRAUD
COERCION
MISREPRESENTATION MISREPRESENTATION AND UNDUE INFLUENCE Ratnam Chettiar & Ors vs S. M. Kuppuswami Chettiar & Ors 1976 AIR, 1 1976 SCR (1) 863
(1) A partition effected between the members of an Hindu Undivided Family by their own volition and with their consent cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. In such a case. the Court should require strict proof of facts, because, an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also, if it is done in good faith and in a bona fide manner keeping into account the interests of the minors. (3) But if the partition is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened after any length of time. In such a case, it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties, but the two transactions are distinct and separable, or have taken place at different times, if it is found that only one of these transactions is unjust and unfair, it is open to the court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.
7. PARTITION DEED WHICH WAS MUTUALLY ACTED UPON CANNOT BE QUESTIONED FOR ITS NON-REGISTRATION 2005 SC Amteshwar Anand v. Virender Mohan Singh & Ors; (2006) 1 SCC 148 Section 17(1) of the Registration Act, 1908 in so far as it is relevant, requires under Clause (b) thereof, registration of "non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property". Sub section (2) of Section 17 creates exceptions to the mandatory requirements of Section 17(1) (b) and (c). One of the exceptions made in Section 17(2) of the Registration Act 1908, is Clause (i). This exception pertains to "any composition deed." In other words all composition deeds are exempt from the requirement to be registered under that Act . The Composition Deed in this case was a
transaction between the members of the same family for the mutual benefit of such members. It is not the appellants' case that the agreements required registration under any other Act. Apart from this, there is the principle that Courts lean in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds particularly when the parties have mutually received benefits under the arrangement . Both the courts below had concurrently found that the parties had enjoyed material benefits under the agreements. We have ourselves also re-scrutinized the evidence on record on this aspect and have found nothing to persuade us to take a contrary view.
8. INITIAL BURDEN OF PROVING EXISTENCE OF JOINT FAMILY PROPERTY IS ON PLAINTIFF 2003 SC JUSTICE Y Sabharwal, and JUSTICE B Agarwal in the case of D.S. Lakshmaiah in
&
Anr.
Vs
L.
2003 AIR 3800 = 2003
Balasubramanyam Balasubramanyam (3
)
Suppl.
& SCR 13
Anr.
Reported
= 2003
(10
) SCC 310 = 2003 (7 ) JT 493 = 2003 (7 ) SCALE 1 The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims c laims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.
Dandappa Rudrappa Hampali And ... vs Renukappa Alias Revanappa AIR 1993 Kant 148, ILR 1993 KAR 1182, 1993 (1) KarLJ 138 All properties inherited by a male Hindu from his father, father's father or father's paternal grand father, is 'ancestral property'. A person may possess ancestral property as well as his self acquired property; it is permissible for a coparcener to blend his self acquired property with that of the ancestral or joint family property. A property acquired with the aid of the joint family property also becomes joint family property. The person acquiring a property if has command over sufficient joint family property, with the aid of which the new property could be
acquired, there is a presumption that the acquired property belongs to the joint family. In such a case the acquieser has to show that his acquisition was without the aid of any joint family assets. However the initial burden is on the person who asserts, that the newly newly acquired asset is of the joint family to prove, prove, that the acquieser had command over sufficient joint family assets with the aid of which he could have acquired the new asset.
9. COPARCENARY IS A CREATURE OF HINDU LAW AND CANNOT BE CREATED BY AGREEMENT OF PARTIES EXCEPT IN THE CASE OF REUNION 1962 SC Bhagwan Dayal Dayal vs Mst. Reoti Devi 1962 AIR 287, 1962 SCR SCR (3) 440 Every Hindu family is presumed to be joint unless the contrary is proved; but this presumption can be rebutted by direct evidence of partition or by course of conduct leading to an inference of partition. There is no presumption that when one member separates from the others the latter remain united; whether the latter remain united or not must be decided on the facts of each case. in the case of old transactions when no contemporaneous documents are maintained and when most of the active participants of the transactions have passed away, though the burden still remains on the person who asserts separation, it. is permissible to fill up gaps more readily by reasonable inferences than in cases where the evidence is not obliterated by passage of time. The conduct of the parties for about 50 years was consistent with their separation rather than with their jointness. Held, further, that it was not established that there was any reunion between K and his nephews. Reunion must be strictly proved. To constitute reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate -with an intention to revert to their former status of a joint Hindu family. It is not necessary that there should be a formal and express agreement to reunite; such an agreement can be established by clear evidence of conduct incapable of explanation on any other footing. In, the plaint it was not alleged that a reunion had taken place by agreement but the court was asked to hold that there was reunion on the ground that the conduct of parties amounted to a reunion. The conduct of the parties spreading over 50 years did not show that K and his nephews had consciously entered into an agreement to reunite and become members of a
joint Hindu family. …….. Coparcenary is a creature of Hindu law and cannot be ,created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or, on behalf of the family. Such business or property would be the business or property, of the, family. The identity of the members of the, family is not completely last in the family. One or more - members of :that family can start a business or acquire property without the aid of the joint family Property, but such business or acquisition would his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self- acquisition, and succession to such property would be governed not by' the law of joint family but only by the law of inheritance. In such a case if a property was jointly acquired by them, it would not be governed by the law of joint family ; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement where under it was acquired.
10. ONCE A DISRUPTION OF JOINT FAMILY STATUS TAKES PLACE, COPARCENERS CEASE TO HOLD THE PROPERTY AS JOINT TENANTS BUT THEY HOLD AS TENANTS-IN-COMMON TENANTS-IN-COMMON
The Hon'ble Apex Court in the case of Kalyani v. Narayanan, reported in AIR 1980 SC 1173 has observed that :-- "Where one of five sons is separated unless a reunion is pleaded, other four sons cannot constitute a corporate body like a co-parcenary by agreement or even by subsequent conduct of remaining together enjoying the property together." Partition can be partial qua person and property but a partition which follows disruption of a joint family status
will be amongst those who are entitled to a share on partition. ………………. There was first a di sruption of the joint family by specifying the shares ………... Till disruption of joint family status takes place no coparcener can claim what is his exact share in coparcenary property. It is liable to increase and decrease depending upon the addition to the number or departure of a male member and inheritance by survivorship. But once a disruption of joint family status takes place, coparceners cease to hold the property as joint tenants but they hold as tenants-in-common. Looking to the terms of Ext.P-1 there was a disruption of joint family status, the shares were specified and vested, liabilities and obligations towards the family members were defined and imbalance out of unequal division was corrected. This certainly has effect of bringing about disruption of joint family status and even if there was no partition by metes and bounds and the coparceners continued to remain under the same roof or enjoyed the property without division by metes and bounds, they did not hold as joint tenants tenants unless re-union is pleaded and proved.
11. THE DAUGHTERS MARRIED PRIOR TO THE COMMENCEMENT OF THE AMENDMENT ACT WERE DEPRIVED OF THE RIGHT TO CLAIM THE SHARE IN THE COPARCENARY PROPERTY Smt. Nanjamma And Another vs State Of Karnataka And Others (DB) ILR ) KarLJ 109 “ A revolutionary change was made in 1999 KAR 1094, 1999 (2 (2 ) the Hindu Law by insertion of Section 6-A vide Karnataka Act No. 23 of 1994, by which a daughter of a coparcener was declared to become a coparcener upon her birth and entitled to same rights in the coparcenary property as were available to a son inclusive of the right to claim by survivorship and be subject to the same liabilities and disabilities in respect thereto as the son. It was further provided that upon partition in such a Joint Hindu Family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son. However, by virtue of clause (d) a classification was made between married daughters. The daughters married prior to the commencement of the Amendment Act were deprived of the right to claim the share in the coparcenary property as was available to an unmarried daughter or a daughter married after the enforcement of the said Act. The alleged discrimination cannot be termed to be either unreasonable or irrational and
without basis. The offending portion of clause (d) of Section 6-A is intended to achieve an objective.”
12. ALIENATION 12. ALIENATION INCLUDING ANY PARTITION HAS TAKEN PLACE BEFORE DECEMBER 20, 2004 CANNOT BE CHALLENGED BY WOMEN CO-PARCENERS Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr. AIR 2012 SC 169 – 2011 (9) SCC 788, The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has has been effected before December 20, 2004. 2004.
13. UNTILL FINAL DECREE IS PASSED PRELIMINARY DECREE CAN BE CHANGED AS THE LAW CHANGES:Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr. AIR 2012 SC 169 – 2011 (9) SCC 788, The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. We are fortified in our view by a 3- Judge Bench decision of this Court in the case of Phoolchand and Anr. Vs. Gopal Lal AIR 1967 SC 1470 wherein this Court stated as follows: "We are of opinion that there is nothing in the Code of Civil
Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. . . . .. So far therefore as partition suits are concerned we have no doubt doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; ........... there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. . . for it must not be forgotten that the suit is not over till the final decree is passed and the court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. . . . .a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended amended and if there is dispute between between surviving parties in that that behalf and that dispute is decided the decision amounts to a decree.... ............ ."
14. IF HE WITHHOLDS A VITAL DOCUMENT IN ORDER TO GAIN ADVANTAGE AGAINST THE OTHER SIDE, THEN HE WOULD BE GUILTY OF PLAYING FRAUD ON THE COURT In the decision, S.P. Chengalvaraya Naidu vs. Jagannath, reported in 1994 (1) SCC 1, the Hon'ble Supreme Court has held that a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to decide the litigation and if he withholds a vital document in order to gain advantage against the other side, then he would be guilty of playing fraud on the court as well as on the opposite party.
15. FALSE REPRESENTATION EVEN WITHOUT BAD MOTIVE IS FRAUD
In Ram Chandra Singh vs. Savitri Devi and others, reported in (2003) 8 SCC 319, the Hon'ble Apex Court has held that it is a fraud in law if a party makes representations which he knows to be false and injury ensues therefrom although the motive from which the representations representations proceeded may not be bad. NOBODY SHOULD BE PERMITTED TO INDULGE IN IMMORAL ACTS LIKE PERJURY, PREVARICATION AND MOTIVATED FALSEHOODS In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421, held that nobody should be permitted to indulge in immoral acts like perjury, prevarication and motivated falsehoods in the judicial proceedings and if someone does so, it must be dealt with appropriately. In case the recourse to a false plea is taken with an oblique motive, it would definitely hinder, hamper or impede the flow of justice and prevent the courts from performing their legal duties.
DATE:- 08-11-2013 PLACE:- TUMKUR
ADVOCATE FOR APPELLANT
