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2025 Supreme(Online)(Kar) 16658
KARNATAKA HIGH COURT
M.G.S. KAMAL, J
SHANTAKUMAR S/O. HANUMANTAPPA MALAGI – Appellant
Versus
SAHADEVAPPA MALAGI S/O. HANUMANTHAPPA MALAGI – Respondent
CIVIL REVISION PETITION NO.100084 OF 2018
For the Appellants/Petitioners:MIS. RANJITA RADDI, ADVOCATE FOR SRI. GANGADHAR J. M.
For the Respondents:SRI. H.M.DHARIGOND, ADVOCATE FOR R1; SMT. VANITA MALAGI, ADVOCATE FOR R4
Allegations of forgery in property partition require factual inquiry, with the trial court holding jurisdiction over the matter without judicial interference.
Headnote:(A) Code of Civil Procedure, 1908 - Section 115 and Order VII Rule 11 - Suit for partition - Petition against rejection of application for rejection of plaint on grounds of limitation and jurisdiction - Plaintiff alleges forgery of Power of Attorney and subsequent illicit partition deed - Court recognizes the necessity for trial regarding mixed questions of law and fact - No reason found to interfere with the Trial Court's dismissal of the application. (Paras 2, 9-12)
(B) Limitation - Commencement of period of limitation for filing suit depends on knowledge of the facts constituting the cause of action - Plaintiff learns of illegalities and promptly files suit after gaining knowledge - Therefore, claims of lack of cause of action are unsustainable. (Paras 9-10)
Facts of the case:
The suit is concerning partition of property wherein the plaintiff contends the transfer of his share was based on a forged document. The Trial Court's order rejecting the plea for dismissal due to limitation was challenged here.
Findings of Court:
The Trial Court had substantial reasoning for its decision, indicating that the plaintiff's allegations warrant further legal examination.
Issues: The crux issues pertain to the legitimacy of alleged forged documents and the timing of the cause of action.
Ratio Decidendi: The court emphasizes the importance of factual inquiries in allegations of forgery and acknowledges the trial court's authority to adjudicate such matters without interference.
Result: Petition is rejected.
| Table of Content |
|---|
| 1. challenge to partition requires valid cause of action. (Para 1 , 2 , 3) |
| 2. claims of partition based on alleged forgery. (Para 4 , 5) |
| 3. arguments regarding limitation and jurisdiction were made. (Para 6 , 7) |
| 4. court examined evidence and upheld trial court's findings. (Para 9 , 10 , 11) |
| 5. final decision to reject the petition was made. (Para 12) |
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. The present petition is filed by the defendant aggrieved by the order dated 16.07.2018 passed in OS No.225/2016 on the file of Additional Senior Civil Judge, Haveri (for short, ‘Trial Court’), by which the Trial Court has rejected the application filed by the petitioner herein under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure , 1908 (for short, ‘CPC’).
2. The above suit in OS No.225/2016 is filed before the Trial Court by the plaintiff / respondent No.1 herein seeking partition and separate possession of his 1/3rd share in the suit schedule properties and for declaration to declare memorandum of partition dated 18.02.2005 is illegal and not binding on him. The plaintiff further contended that the deed of sale dated 06.01.2016 executed by defendant No.4 in favour of defendant No.5 in respect of suit schedule A1 property and also the deed of sale executed by defendant No.1 in favour of defendant No.5 in respect of suit schedule A2 property is illegal and not binding on him. The plaintiff has contended that, one Hanumantappa Malagi is the father of the plaintiff and defendant Nos.1 and 2. The said Hanumantappa Malagi died on 24.08.1964 leaving behind plaintiff and defendant Nos.1 and 2 as his legal heirs. As such, they are entitled for equal share in the suit properties. That defendant Nos.1 to 3 had created and fabricated a Power of Attorney in the name of defendant No.3 with an intention of denying the plaintiff of his share in the suit properties. The plaintiff has neither executed Power of Attorney nor had appeared before the Notary Public. Based on the strength of the said fabricated General Power of Attorney, defendant Nos.1 and 3 had entered into a registered Memorandum of Partition deed dated 18.02.2005, deliberately stating that the plaintiff had relinquished his share in the suit schedule properties by receiving a sum of Rs.2,50,000/-. That he had never authorized defendant No.3 to enter into partition on his behalf. As such, the Memorandum of Partition was illegal and not binding on the plaintiff. That the consequent execution of deeds of sale in favour of defendant Nos.4 and 5 was also illegal and not binding on the plaintiff. At paragraph No.9 of the plaint, it is specifically contended that the plaintiff learnt about the illegality committed by the defendant No.4 recently. Immediately thereafter, they approached the defendant No.4 seeking partition and allotment of suit schedule property. The cause of action of the suit arose on 07.07.2016 when the defendants denied his legitimate share in the suit property, the plaintiff constraint to file the suit.
3. Written statement has been filed in the above suit. Defendants thereafter filed an application under Order VII Rule 11 read with Section 151 of CPC seeking rejection of plaint on the ground of the same having been barred by limitation and also the Court not having jurisdiction to entertain the suit. Plaintiff not paying the proper Court Fee and there being no cause of action to the suit.
4. Objection to the said application came to be filed by the plaintiff denying the averments made in the application and seeking rejection of the same.
5. The Trial Court by the impugned order rejected the said application. Being aggrieved by which the present petition is filed.
6. Miss. Ranjita Raddi, learned counsel appearing for the petitioner vehemently submits that the document in question which is sought to be nullified is registered deed of partition. The said document was executed on 18.02.2005 whereas, the present suit is filed in the year 2016
