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IN THE HIGH COURT OF KARNATAKA BENCH AT DHARWAD
SREENIVAS HARISH KUMAR, J.
Monakka Shinde W/o Somanath Shinde - Appellant
Vs.
Maruti Shinde S/o Somanath Shinde & Ors. - Respondents
R.S.A. No. 5385 of 2012
Decided On : 09-10-2017
INDIAN REGISTRATION ACT, 1908 [C.A. NO. 16/1908] - Section 58 - Registration of document - As per Rule 73 of Rules 1965 it is not duty of registering officer to enquire into the validity of document presented before him for registration or to attend to any written or verbal protest against registration of document, if execution is admitted. But only requirement is if executants are unable to read, document shall be read out and if necessary, explained to them. If document is in language which executants do not understand, it must be interpreted to them. However whole document does not become vitiated for non-compliance of this. If the party is aware of contents of document before it was presented for registration, non-compliance of Rule 73(i) of the Rules need not be given any importance.
KARNATAKA REGISTRATION RULES, 1965 - Rule 73 - INDIAN REGISTRATION ACT, 1908 [C.A. NO. 16/1908] - Section 58 - Registration of document - Partition deed - Evidence disclosing plaintiff's knowledge about nature of settlement going to take place between parties - Plaintiff admitting her thumb impression on document - Absence of endorsement of Sub-Registrar explaining contents of deed to plaintiff cannot be ground to hold document illegal.
INDIAN REGISTRATION ACT, 1908 [C.A. NO. 16/1908] - Section 58(1)(c): Execution of registered partition deed - Requirement of endorsement by Sub-Registrar - Endorsement by registering officer is necessary only when payment of money or delivery of goods is made in his presence - Defendants paying plaintiff at time of execution and plaintiff acknowledging receipt of same - Endorsement of Sub-Registrar, not necessary.
SPECIFIC RELIEF ACT, 1963 [C.A. No. 47/1963] - Section 34 - Suit for declaration of partition deed as not binding - Plea of fraud - Burden of proof - No allegation in plaint as to existence of fiduciary relationship between plaintiff and defendant - No pleadings that defendant is in position to dominate will of plaintiff - Plaintiff also not stating that she had placed absolute confidence on defendant - Burden is on plaintiff - Defendant need not prove first that transaction is fair throughout.
HINDU SUCCESSION ACT, 1956 [C.A. NO. 30/1956] - Sections 14(1),(2) - Absolute ownership of female Hindu - Female Hindu relinquishing her right to equal share in suit properties and receiving money against same from her sons - Right of residence given to her till her lifetime in house allotted to one of her sons by virtue of settlement - Said right is not in recognition of her pre-existing right - She cannot claim to have become absolute owner of house in terms of Section 14(1) - Her right is restricted right as per Section 14(2) Act.
INDIAN CONTRACT ACT, 1872 [C.A. NO. 9/1872] - Section 17 - Suit for cancellation of document - Plea of fraud - Burden of proof - Exception to general rule - Held, Whenever plaintiff alleges fraud, misrepresentation and undue influence, burden is on him/her to prove this, if he or she seeks to cancel or set aside a document that has affected his or her interest .This is general principle. But an exception to this general principle is that though party to suit alleges fraud or misrepresentation or undue influence, burden lies on opponent to prove that transaction was fair throughout, if party who makes allegation of fraud etc., stands in fiduciary relationship with his/her opponent. Fiduciary relationship arises where one person places complete confidence in another in regard to particular transaction or one's general affairs or business. This rule is equally applicable to an old, illiterate, ailing person, who is unable to comprehend nature of document or contents thereof. However to apply this principle wherever it emerges, it is necessary that existence of such kind of relationship must first be established. The party complaining of this must show that he/she reposed absolute faith or confidence in another. Mere nearness of relationship does not give rise to a presumption about existence of fiduciary relationship. Implicit circumstances as to existence of fiduciary relation may be demonstrated. It must be pleaded first and then proved.
This appeal under Section 100 of C.P.C. is by the plaintiff in the suit, O.S. 370/2004, on the file of I Addl. Senior Civil Judge, Belagavi. Since the suit was decreed, respondent No.1 herein preferred an appeal, R.A.117/2010 to the District Court, Belagavi. The said appeal, having been allowed and the judgment and decree of the trial Court set aside on 13.01.2012, the plaintiff, aggrieved by the said judgment, has filed this second appeal.
2. By referring to the parties with respect to their positions in the suit, pleadings are summarized as below:-
3. The plaintiff is the stepmother of defendant No.1 and natural mother of defendant No.2. As the plaintiff states, she is the second wife of one Somanath Shinde. The 1st defendant’s mother died when he was a child; Somanath married the plaintiff after his first wife died and she brought up defendant no.1 since his childhood, as her own son. According to plaintiff, even before her marriage, she was managing agricultural operations; she was growing and purchasing paddy and processing it into rice for being marketed. She had good source of income from her independent business. Besides this, she had been given gold jewellery at the time of her marriage and other occasions. Her husband, Somanath was working in Regional Transport Office, Belagavi and his salary income was just sufficient to maintain the family and that he had spent a lot for the medical treatment of his first wife; he had no surplus funds to purchase property. The plaintiff states that the properties at items A, B, C, D and E as described in the plaint were acquired by her and two other items, F and G are the joint family properties of her husband. She also states that after the death of her husband on 26.08.1979, she along with her son i.e., defendant No.1, obtained loan from the Belagavi Pioneer Urban Co-operative Bank Ltd., and constructed a commercial complex at plaint items D, E, F and G properties.
4. It is the further case of plaintiff that defendant No.1 joined the services of Maharastra Government as a police officer and that her son i.e., the second defendant started a printing press at Belagavi. The defendants, very particularly, the defendant No.1 started behaving indifferently. They put pressure on her to effect partition of the suit properties. She did not agree for partition of her self-acquired property, but the defendants assured of giving her 1/3rd equal share and also an amount of Rs.50,000/- for her maintenance. Therefore, she agreed for effecting division, and thus, on 09.10.2002, the partition deed came into existence. She was under the impression that she had been given equal 1/3rd share. The defendants also did not give her Rs.50,000/-. In the month of May 2004, defendant No.1 tried to dispossess her illegally from her house at Kodalkar galli, Belagavi. He told her that the said house belonged to him exclusively and that she had no right, title or interest in that house. Immediately, she approached the elderly persons of her society and came to know that both the defendants had obtained her thumb impression on the partition deed by misrepresenting to her that 1/3rd equal share had been given to her. She came to know about fraud only then, and therefore, she instituted the suit seeking a declaration that the partition deed dated 09.10.2002 did not bind her and that it was null and void as it was obtained fraudulently; for awarding 1/3rd equal share in the properties and granting perpetual injunction restraining the defendants from interfering with her peaceful possession and enjoyment of suit property.
5. The defendant No.1 in his written statement disputes the correctness of relationship as has been stated in the plaint. Although, he admits that he is the stepson of the plaintiff, he states that the plaintiff is the third wife of his father. After the death of his mother, Sundara Bai, he states that his father married one Krishana Bai with whom the marriage did not last long and it ended i
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