Chief Justice

This Writ Petition assails the Order of the XXII Additional City Civil Judge, Bangalore City (hereinafter referred to as the ‘Trial Court’) in O.S.No.9670/2005, passed on 19.12.2010, whereby a document styled as a Release Deed dated 05.05.1976 was permitted to be ‘marked’ by the Defendants in their evidence, in a suit for partition and possession of Joint family properties filed by the Plaintiff-Petitioner. Review Petition No.482/2010 has been filed by the plaintiff to recall the Judgment dated 17.01.1994 rendered by the Division Bench in RFA No.43/1993 reversing the earlier Order dated 16.01.1993 of the Trial Court, in essence declining to allow the very same ‘Release deed’ to be read in evidence.

2. The plaintiff – D. Sambashivan and defendants’ father late Dhanakoti were brothers, being the sons of late Doraiswamy Mudaliar. Dhanakoti was the eldest son of seven siblings (four brothers and three sisters) and the Plaintiff. Sambashivan the youngest of the brothers. It appears that the former (eldest brother) assumed the responsibility of brining up the latter (the youngest brother). The property in question is situate in Muddenahalli, Bangalore North Taluk, located on Seshadri Road, City Railway Station, Bangalore (hereafter referred to as ‘the suit property’). It is a three storied building on plot No.44 measuring one acre three guntas. The original proprietor namely, Doraiswamy Mudaliar died on 30.09.1952 and his widow on 15.05.1956. Dhanakoti (father of the defendants), Om Prakash, Mani and Sambashivan (plaintiff) were the coparceners of the said HUF and Dhanakoti being the eldest son, became its kartha. The other brothers namely, Om Prakash executed a duly registered Release Deed on 05.05.1962 in favour of Dhanakoti, father of the defendants on 28.06.1971. Mani separated himself from coparcenary vide duly registered Partition Deed dated 28.06.1971 also in favour of Dhanakoti.

3. On behalf of the defendants it is contended that their uncle/Plaintiff had entered into an oral partition with Dhanakoti, relinquishing his right, title and interest in all the movable and immovable properties of the joint family in April 1976; an affidavit of declaration was sworn by him on 15.04.1976 before the Chief Judicial Magistrate; and this was followed up by the purported Release Deed dated 05.05.1976 which forms the fulcrum of their fight. The Plaintiff contends that it is inadmissible in evidence since it is neither properly stamped nor registered. The Defendants claim that payments have been made in connection with the said Release Deed, whereas the Plaintiff asserts that those payments were for salary and other dues payable to him by his brother Dhanakoti. In the meantime, a third party namely, Venkateshan had filed suit O.S.No.10021/1985 seeking recovery of money from the Plaintiff. This suit was decreed ex parte Sambashivan, on 05.11.1985; and thereafter Execution Petition No.10015/1987 was filed in which Sambashivan was similarly set ex parte. It was in those circumstances that an attachment order dame to be passed in respect of the suit property. The defendants, successors in interest of their father late Dhanakoti, immediately initiated proceedings under Order XXI Rule 58 of the Code of Civil Procedure, asserting that the suit property was not available or liable for attachment towards satisfaction of the decree passed in favour of Venkateshan inasmuch as the Plaintiff had already relinquished or released his interest in the attached property by executing the purported Release Deed in question. This motion under Order XXI Rule 58 CPC bearing Miscellaneous Case No.10106/1989 came to be dismissed by the Execution Court on 16.01.1993, resulting in the filing of Regular First Appeal No.43/1993. It is significant that the Defendants had not impleaded the Plaintiff (also the ex parte Judgment-Debtor) in the said Appeal which, in that event, came to be heard and decided in the absence of even the Decree Holder V