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2017 Supreme(Kar) 763
IN THE HIGH COURT OF KARNATAKA
ARAVIND KUMAR, J.
A.C. Nagaveni & Others - Petitioners
Versus
Akkamma & Others - Respondents
R.F.A. Nos. 1015, 770 of 2008; 970 of 2009 & RFA Crob. No. 13 of 2009; 8 of 2010
Decided On : 03-05-2017
Advocate Appeared:
P.H. Ramalingam, Mahesh & Rao, Ajith A Shetty, S.N. Ravichandra, R. Chandranna, M/s. S.A. Partners, G.A. Srikanth Gowda, K.S. Mahadevan, B.G Vijayalaxmi, G.V. Krishna Reddy, B.G. Geetha, D. Ramesh, N. Bayyareddy
Headnote:POWERS OF ATTORNEY ACT, 1882 – Section 2 & C.P.C. Order 3, Rule 1 – Evidence of Power of Attorney holder – General Power of Attorney presented at time of examination of Attorney holder on behalf of principal – Held, It is not sufficient to arrive at conclusion that evidence tendered by Attorney holder, also binding on principal.
CODE OF CIVIL PROCEDURE, 1908 – Order 3, Rule 1 & Powers of Attorney Act (7 of 1882), Section 2 – Evidence of Power of Attorney holder – General Power of Attorney presented at time of examination of Attorney holder on behalf of principal – Held, It is not sufficient to arrive at conclusion that evidence tendered by Attorney holder, also binding on principal.
CODE OF CIVIL PROCEDURE, 1908 – Order 3 Rules 1, 2 – Recognized agent – Word ‘act’ relates to acts done by POA holder in exercise of power granted under said document, but cannot depose for ‘acts’ done by principal regarding matter of which principal having personal knowledge.
CODE OF CIVIL PROCEDURE, 1908 – Order 26, Rule 9 – Appointment of Commissioner – for determination of age of ink on documents produced – Two expert witnesses stating in their evidence that thumb impressions and signatures are of one and same person – One of defendants admitting her signature on sale deed and palupatti (panchayat partition) – Held, Application is liable to be rejected.
HINDU LAW – Suit for partition – Hindu undivided property – Plaintiff being wife of last surviving son of deceased owner applying for partition of property – Defendants denying existence of undivided joint family – Severance of joint family, during partition and allotment of separate shares as per document to parties styled as 'palupatti' – Plaintiff and defendants duly signed document and acted upon it – Plaintiff and one defendant selling some of properties allotted to them – Defendants establishing validity and genuineness of 'palupatti' and sale deeds corroborated by Expert reports – Purchasers of allotted properties, in possession of it and paying taxes to municipal authorities – Defendants successfully establishing partition and severance of joint family property by way of panchayat – Suit, is liable to be dismissed.
HINDU LAW – Suit for partition – Plea of fraud and misrepresentation by P.A. Holder of Plaintiff – Plaintiff not entering witness box – Plaintiff and defendant-daughters affixing signatures on several occasions on some papers, bonafidely, having great faith and affection towards defendant-sons – Plea of plaintiff that not only her intentions and ignorance had been misused but also of her daughters – Defendants challenging competency of Attorney holder to tender evidence on behalf of plaintiff – Instant case requires proving of facts which were within personal knowledge of plaintiff alone who alone can depose to said effect – Non-examination of plaintiff, is partially fatal.
INDIAN EVIDENCE ACT, 1872 – Section 92 – Exclusion of oral evidence – Person who asserts that recitals in registered document not to be accepted and relied upon has to establish same by tendering rebuttal evidence.
Certainly. Based on the provided legal document, here are the key points:
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The suit involved a claim for partition and separate possession of joint family properties by the plaintiff, who contended that the properties were ancestral and undivided (!) (!) .
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The plaintiff alleged that her late husband was allotted the properties following a family partition in 1962, and that subsequent improvements and transactions were made out of joint family funds (!) (!) .
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The plaintiff claimed that her signatures and left thumb impressions were obtained on blank papers and documents under false pretenses, exploiting her illiteracy and innocence, and that she was misled by her sons and daughters-in-law (!) (!) .
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The defendants contended that there had been a prior valid partition in 1981, evidenced by a palupatti (family settlement), which was signed by the plaintiff and her children, and that this partition resulted in the severance of the joint family status (!) (!) (!) .
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The defendants also argued that the properties in question were either self-acquired or acquired after the alleged partition, and that the joint family status was dissolved prior to the suit, thus making the suit for partition not maintainable (!) (!) (!) .
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The trial court examined various documents, including a partition deed dated 20.12.1981 (Ex.D-12), sale deeds, and expert reports on thumb impressions and signatures, to determine the existence and validity of the alleged partition and the joint family status (!) (!) (!) (!) (!) (!) (!) .
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The court found that the partition deed was a compulsorily registrable document and was inadmissible in evidence because it was not registered, and because witnesses to its execution were not examined (!) (!) .
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Despite this, the court considered the content of the document and other evidence, including sale deeds and expert opinions, to conclude that there was a severance of the joint family in 1981 and that the properties had been partitioned and acted upon by the parties (!) (!) (!) (!) (!) .
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The court also noted that the signatures and left thumb impressions on the disputed documents matched those of the parties, supported by expert reports, and that the signatures on the sale deeds were not contested (!) (!) .
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The plaintiff did not enter the witness box to testify personally, which the court acknowledged could be a deficiency; however, the court relied on the evidence of her power of attorney holder and other documentary evidence to establish her claims (!) (!) (!) (!) (!) (!) (!) (!) .
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The court ultimately held that the plaintiff failed to prove that the properties were joint family properties, and that the alleged family settlement and partition deed were invalid or not proved, leading to the dismissal of the suit (!) .
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The appellate court reversed the trial court’s findings, holding that the evidence supported the existence of a valid partition in 1981 and that the properties had been severed from the joint family, thus affirming the validity of the partition and the title of the defendants (!) (!) (!) .
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The appellate court also observed that the non-examination of the plaintiff was not fatal, given the documentary evidence and expert reports, and that the evidence on record sufficiently proved the severance of the joint family and the validity of the partition deed (!) (!) (!) .
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The court dismissed the appeals filed by the plaintiff and upheld the defendants’ claim that the properties were separately owned following the 1981 partition, and that the suit for partition was therefore not maintainable (!) (!) .
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All pending applications were disposed of, and no order as to costs was made (!) (!) .
These points encapsulate the core findings, legal arguments, and conclusions of the case as detailed in the document.
1. These appeals and cross objections have been filed questioning the correctness and legality of the judgment and decree passed by XXII Addl. City Civil Judge, Bangalore on 10.03.2009 in O.S.NO.6906/1997 whereunder suit filed by the plaintiff for partition and separate possession came to be decreed by granting plaintiff 9/32nd share in items -1 to 11 of plaint 'A' schedule properties and the properties described in plaint 'B' schedule. Suit filed in respect of item No.12 and 13 of plaint 'A' schedule and properties described in plaint 'C' schedule has been dismissed. Further decree has been passed for conducting enquiry into mesne profits. It is also decreed that plaintiff would be entitled for maintenance from defendants-1 and 2 till final decree and amounts so received was ordered to be adjusted from mesne profits to be determined in Final Decree Proceedings.
2. RFA No.770/2008 is preferred by defendants-1, 1(a) to 1(c) challenging the judgment and decree passed in O.S.No.6906/1997 decreeing the suit. RFA No.970/2009 is filed by defendants-3 & 7 challenging same judgment and decree insofar as dismissing the suit in respect of item Nos.12 and 13 of plaint 'A' schedule properties and movable properties described in plaint 'C' schedule. Cross objections No.13/2009 (in RFA No.770/2008) is preferred by defendants-3 & 7 questioning the allotment of quantum of shares and the findings recorded on item No.12 and 13 as same being the self acquired properties of second defendant. RFA NO.1015/2008 is preferred by defendants-2, 2(a) to 2(d) challenging same judgment and decree whereunder suit came to be decreed in respect of item Nos.1 to 11 of schedule 'A' properties and 'B' schedule properties in entirety. Cross Appeal No.8/2010 is preferred by third defendant in RFA No.1015/2008 challenging the dismissal of the suit in respect of item No.12 and 13 of schedule 'A' property.
3. For the purposes of convenience and immediate reference, the appeals/cross objections- appeals and the rank of the parties who have filed the same are tabulated herein below:
Sl. No.
Appeal No.
Cross objections or cross appeal No. in RFA No.
Preferred by - rank in trial Court
1
RFA No. 770/2008
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Defendants-1, 1(a), 1(b) & 1(c)
2.
RFA CROB.13/2009 in RFA No.770/2008
Defendant Nos.3 & 7
3.
RFA 970/2009
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Defendant Nos.3 & 7
4.
RFA 1015/2008
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Defendants Nos.2,2(a) to 2(d)
5.
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RFA CROSS APPEAL No.08/2010 in RFA No.1015/2008
Defendant Nos.3
FACTUAL BACKGROUND
4. For purposes of convenience, parties are referred to as per their rank in the trial Court.
Suit in question i.e., O.S.No.6906/1997 came to be filed by Smt. Akkamma against defendants for partition and separate possession claiming 3/8th share in the suit schedule properties, which are both movable and immovable properties as described in Schedule to the plaint as 'A', 'B' & 'C' schedule properties. Plaintiff had sought for partition in respect of 13 properties and item No.1 in 'A' schedule came to be deleted as per order dated 06.03.2000 passed on I.A. No. VII. Though in plaint 'B' schedule properties, 8 items were described thereunder and partition was sought for. Subsequently, plaintiff has deleted item Nos.5 to 8 as per order dated 06.03.2000 passed on I.A. No. VIII.
It was specifically contended by the plaintiff that she and defendants are the members of Hindu Undivided Joint Family and as per the genealogical tree filed along with the plaint, relationship of the parties have been described therein and it reads as under:
“CHART”
It is the case of the plaintiff that suit schedule properties are the ancestral and joint family properties of plaintiff and defendants and that they are in joint possession. Plaintiff contended that there was a partition that took place in the year 1962 between the original propositus late Sri
