Mahalinga Bhat v Bedradi Thirumaleshwara Bhat and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **& THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 6TH DAY OF SEPTEMBER 2016/15TH BHADRA, 1938** **AS.No. 224 of 1995 (C) -----------------------** **AGAINST THE JUDGMENT IN OS 120/1982 of SUB COURT, KASARAGOD DATED 14/10/1986.** ## **APPELLANT/PLAINTIFF:** **-------------------MAHALINGA BHAT, S/O. BEDRADI SUBRAMANYA BHATTA, C/O. DR.K.M. KRISHNA BHATTA, RESIDING AT BOOVIKANA IN MULIYAR VILLAGE, P.O. MULIYAR, KASARAGOD TALUK, KASARAGOD DISTRICT.** **BY ADVS.SRI. S. SUJIN SRI.K.MOHANAKANNAN SMT.M.A.ZOHRA** ## **RESPONDENTS/DEFENDANTS:** - **-----------------------** **1. * BEDRADI THIRUMALESHWARA BHAT, RESIDING AT KILINGAR OF PERDALA VILLAGE, NEERCHAL, KASARAGOD.[DIED] [LRs IMPLEADED]** **2. BEDRADI AMMA, RESIDING AT DO. DO.** **3. ** UDAYA RAVI (MINOR BY GUARDIAN FIRST DEFENDANT) RESIDING AT DO. DO.** **4. *** SUBRAMANYA BHATTA, S/O.SHANKARANARAYANA BHATTA, C/O.THIMMAPPAYYA PADYANA TEMPLE, KARUVAPPADY VILLAGE, P.O. MALIGADDE, KASARAGOD TALUK.] [DIED][RECORDED]** **5. SHARADA, W/O.SUBRAMANYA BHAT, C/O.K.SUBRAMANYA BHAT, RESIDING AT KATTIPALLA, P.O.MULIYAR, KASARAGOD TALUK. ....2** **-2-** **6. BALAKRISHNA BHAT, S/O.SUBRAMANYA BHATTA, C/O.M.RAMACHANDRA BHATTA, UPPINARGADI HOUSE, P.O.UPPENANGADI, PUTTUR TALUK, KARNATAKA STATE.** - **7.**** N.VENKATARAMANA BHAT, S/O.N.GOPALAKRISHNA BHATTA, LECTURER, ST.PHILOMENAS COLLEGE, PUTTUR PO., DARBE, KARNATAKA STATE [DIED][LRs IMPLEADED]** **8. N.KRISHNA BHAT, TEACHER, RESIDING AT KAKKALE OF PERDALA VILLAGE, P.O.NEERCHAL, KASARAGOD TALUK.** **9. N.SUBRAMANYA BHAT, TEACHER, RESIDING AT DO. DO. 10. N.PARAMESHWARA BHAT, OFFICER, SYNDICATE BANK, BALGAM, P.O. BELGAM, KARNATAKA STATE.** **11. N.NARAYANA BHAT, RESIDING AT KOKEKALA OF PERDDALE VILLAGE, P.O.NEERCHAL, KASARAGOD TALUK.** **12. N.SHAMA BHAT, RESIDING AT DO. DO.** **13. N.GANESH KUMAR, RESIDING AT DO. DO.** - **ADDL. 14. VANITHA, W/O.N.VENKATARAMANA BHAT, LECTURER, ST.PHILOMINA COLLEGE, PUTTUR PO., DARBE, KARNATAKA STATE [PRESENT ADDRESS: MUNDOOR HOUSE, P.O.MUNDOOR, KARNATAKA]** - **ADDL. 15. VENUGOPAL, S/O.LATE N.VENKATARAMANA BHAT, DO. DO.** - **ADDL. 16. KAVYA, D/O.LATE N.VEKATARAMANA BHAT, DO. DO.** - **ADDL. 17. LALITHA, D/O.LATE BEDRADI THIRUMALESWARA BHAT, STAYING WITH UDAYA RAVI, KILINGAR P.O., PERDALA VILLAGE, NEERCHAL P.O., KASARAGOD DISTRICT.** - **ADDL. 18. PREMA, SCHOOL TEACHER, RAMDAS NAGAR, KASARAGOD.** **......3** **-3-** *** LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 17 AND 18 VIDE ORDER DATED 16/9/2015 IN CMP NO.2587 OF 2002.** **** [R3 DECLARED AS MAJOR AS PER ORDER DATED 22.11.1994 ON CMP 4258/94.]** ***** [IT IS RECORDED THAT 4TH RESPONDENT DIED AND THE APPLLENAT AND RESPONDENTS 5 AND 6 ARE HIS LEGAL HEIRS AS PER ORDER DATED 03.07.2013 IN MEMO DATED 26.02.2007 CF NO.998/07.]** ****** LEGAL HEIRS OF DECEASED 7TH RESPONDENT ARE IMPLEADED AS ADDITIONAL R14 TO R16 AS PER ORDER DATED 3/7/2013 IN CMP.NO.4694/96.** **R1 BY ADV. SRI.S.V.BALAKRISHNA IYER R2 & R3. BY ADV. SMT.P.VANI** **R7,8,9,11 & 12. ADV. SRI.U.P.KUNIKULLAYA R8 TO 12, ADDL. R14 & R15 BY ADV.SRI.K.SHRIHARI RAO ADV. SMT.N.SHOBHA** **ADV. SRI.K.S.BALAKRISHNAN ADDL.17 BY ADV. SRI.P.B.KRISHNAN ADV. SMT.GEETHA P.MENON ADV. SRI.N.AJITH ADV. SRI.P.M.NEELAKANDAN ADV. SRI.P.B.SUBRAMANYAN** **THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 25-08-2016, THE COURT ON 06-09-2016 DELIVERED THE FOLLOWING:** ## **V. CHITAMBARESH & K. HARILAL, JJ.** **--------------------------------------------------------A.S. No. 224 of 1995 ---------------------------------------------------------Dated this the 6[th] day of September, 2016** ## **JUDGMENT** ## **Harilal, J.** The appellant is the plaintiff in O.S.120 of 1982 on the files of the Subordinate Judge's Court, Kasaragod. The said suit was one for partition, after setting aside Ext.A1 partition deed entered into between the 1[st] defendant and others and Ext.A2 sale deed executed by the 4[th] defendant in favour of defendants 7 to 13. The plaintiff is the son of the 4[th] defendant. The 'B' Schedule property originally belonged to Shankaranarayana Bhatta, the father of the 1[st] and 4[th] defendants and grandfather of the plaintiff. Defendants 2 and 3 are the wife and son of ## **A.S. No. 224 of 1995** -: 2 :- the 1[st] defendant and defendants 5 and 6 are the wife and son of the 4[th] defendant. Defendants 7 to 14 are the persons who had purchased the property allotted to the 4[th] defendant and others under Ext.A1 partition deed, by Ext.A2 sale deed. 2. The plaintiff and defendants 1 to 6 belonged to a joint Hindu undivided family governed by Hindu Mithakshara Law of Inheritance, till the passing of Act 30 of 1976 and thereafter, the property was held as tenants in common. Subsequently, they have partitioned the property by partition deed dated 22/06/1962 between defendants 1 and 4 on the one hand and one Erippady Bapunhi Haji on the other side. According to the plaintiff, after the said partition, the 1[st] defendant was managing the family, as the 4[th] defendant, the father of the plaintiff, was a man of poor intellect and not in a sound and disposing state of mind. Subsequently, the 1[st] defendant had brought about Ext.A1 partition deed, incorporating false and self-serving recitals and managed to clandestinely obtain the signature of the 4[th] defendant, exploiting his **A.S. No. 224 of 1995** -: 3 :- unsound mind. The plaintiff and the 6[th] defendant were minors on the date of Exts.A1 and A2. The 1[st] defendant's branch is allotted with 2/3[rd] share, instead of 1/2 share. The classification of property is false and division is unequal. Various debts shown in Ext.A1 partition deed are false and bogus. Ext.A2 sale deed executed in favour of defendants 7 to 13 is not true and genuine and is not supported by consideration. Thus, the partition brought about under Ext.A1 partition deed is unjust, unequal and inequitable. Hence, 'B' Schedule property is liable to be partitioned again after setting aside Exts.A1 and A2, for the reasons stated above, the appellant pleaded. 3. The 1[st] defendant contended that the claim for fresh partition is one without any bona fides. It is denied that the 4[th] defendant was a man of poor intellect and unsound mind. He was not a man of unsound mind from 1973 to 1979, as alleged by the plaintiff. He denied the entire allegations about the mismanagement of property. At the same time, he admitted the relationship and the law governing them **A.S. No. 224 of 1995** -: 4 :- in the matter of the disposition of property. Defendants 2 and 3 also endorsed the contention raised by the 1[st] defendant. The 4[th] defendant was set ex parte. Defendants 7 to 13 also denied the plaint allegations and contended that they are bona fide purchasers who had purchased the property, by Ext.A2 sale deed, for adequate consideration. 4. The prime question to be considered is, whether the trial court is justified in arriving at such a finding that Exts.A1 and A2 are not liable to be set aside as the plaintiff had failed to prove the alleged unequal and inequitable allotment of property under Ext.A1 partition deed and the alleged unsound mind of the 4[th] defendant at the time of execution of Exts.A1 and A2. 5. The basic contention on which the appellant had sought for setting aside Ext.A1 partition deed and Ext.A2 sale deed is that the appellant was a minor at the time of execution of Exts.A1 and A2 and his father, the 4[th] defendant, was inherently a man of poor intellect and weak mind and Ext.A1 partition deed was **A.S. No. 224 of 1995** -: 5 :- brought about exploiting that situation. Similarly, the 4[th] defendant was a man of unsound mind during the period from 1973 to 1979 and Ext.A2 sale deed was brought about during this period exploiting, the unsound mind of the 4[th] defendant. 6. It is not disputed that the appellant was a minor at the time of execution of Exts.A1 and A2 and the defendants 1 and 4 had brought about Exts.A1 and A2 during the period of his minority. It is pertinent to note that the appellant had no case that when Ext.A1 was executed, the 4[th] defendant was a man of unsound mind. Therefore, as regards Ext.A1, what remains to be considered is, whether the 4[th] defendant was inherently a man of poor intellect and weak mind at the time when Ext.A1 was executed. Absolutely, there is no evidence to show that the 4[th] defendant was inherently a man of weak intellect and poor mind. If that be so, Ext.A1 can be set aside and partition can be reopened, if the appellant succeeds in proving that the allotment made in Ext.A1 partition deed is unfair, inequitable and prejudicial to the interest of the minor. **A.S. No. 224 of 1995** -: 6 :- 7. It is contended that the property allotted to the 4[th] defendant's branch, as per Ext.A1, was lesser than the extent allotted to the defendants 1 and 3 together. According to the appellant, each branch is entitled to get half share equally. As rightly held by the trial court, the extent of property alone cannot be considered to determine the question whether the allotment is equitable or not. It is the value of the property that matters. It can be seen that the family house was allotted to the 4[th] defendant's branch and no house was allotted to the 1[st] defendant's branch. So, mere extent of property allotted to the 1[st] defendant's branch alone cannot be taken as a circumstance to show that the allotment is inequitable. In this context, it cannot be forgotten that the partition was effected by mutual agreement entered into between the parties with their open eyes. So, a slight difference, in extent, is always negligible only and the value of property allotted to each sharer is the determinate factor. 8. So, the question is, whether the partition is **A.S. No. 224 of 1995** -: 7 :- inequitable, in view of the value of the property. The value of the property allotted the 1[st] and 3[rd] defendants comes together Rs.1,13,665.60. But the value of the property allotted to the 4[th] defendant's branch comes together Rs.1,03,977.36 and the difference is Rs.9,688.24 only. 9. The plaintiff contended that Item No.1 comprised in R.S.No.93-1 is an arecanut garden; but the Advocate Commission has taken it as paddy land only. If it is really an arecanut garden, the value of the property allotted to the 1[st] defendant's branch will be worth more to the extent of Rs.54,405.44 than the property allotted to the 4[th] defendant's branch, when they are entitled to equal share only. 10. So, the court below meticulously considered the question whether the property comprised in R.S.No.93-1 was an arecanut garden or not? The plaintiff contended that according to the remarks column of Ext.B3 partition deed dated 22/6/1962, the property comprised in R.S.No.93-1 was planted with arecanut. But the court below after examining the said **A.S. No. 224 of 1995** -: 8 :- remarks column, found that R.S.No.93-1 was not the only item which was the subject matter of Ext.B3. R.S.Nos.101-2 and 101-4 were also partitioned and the remarks column covers the property comprised in those Survey numbers also. In that view of the matter, the remarks column cannot be taken as a criterion to determine the nature of property comprised in R.S.No.93-1 at the time of Ext.B3, particularly when, in Ext.B3, R.S. No.93-1 is described as 'Nanja' i.e., paddy field. In Ext.B2 also the property comprised in R.S.No.93-1 is described as 'Nanja'. 11. It is true that in Ext.A9 Cultivation Register alone R.S.No.93-1 is referred to as arecanut plants. But, it is to be remembered that Cultivation Register is maintained for the purpose of calculating paddy cultivated in the property and also for assessing levy and is not intended for areca cultivation. The extent over which paddy cultivated alone is relevant in these Registers. So, Ext.A9 cannot be taken as a criterion to determine the nature of property comprised in R.S.No.93-1. Nobody has been examined to prove **A.S. No. 224 of 1995** -: 9 :- Ext.A9 or to explain recital in Ext.A9. In that circumstance, the court below is justified in not relying on Ext.A9 Cultivation Register to consider the property comprised in R.S.No.93-1 as arecanut garden. 12. It is also contended that the family was not assessed for levy; so, it can be an areca garden only. But, it is pertinent to note that the extent of paddy land was just about 2 Acres only and thereby, the property might have fallen, below the required extent to assess levy. So, the lack of materials to show assessment or grant of levy cannot be taken as a circumstance to arrive at a finding that the property comprised in R.S.No.93-1 is an arecanut garden. Thus, it could be seen that the plaintiff has miserably failed to prove that the property comprised in R.S.No.93-1 is an arecanut garden. If the property comprised in R.S.No.93-1 is a paddy land, the total value of the property allotted to the defendants 1 to 3, is in excess of Rs.9,688.24 only, than the value of the property allotted to the 4[th] defendant's branch. 13. In calculating the value of shares allotted to **A.S. No. 224 of 1995** -: 10 :- the parties in Ext.A1, the debt allotted to each sharer also has to be considered and value of share has to be taken, after deducting the value of debt. In Ext.A1, the debt allotted to defendants 1 to 3 together is Rs.43,043.71; whereas the value of the property allotted to defendants 1 to 3 together is Rs.1,13,665.60. So, after deducting the debt, the value of the property allotted to defendants 1 to 3 is Rs.70,630.89; whereas the value of the property allotted to the 4[th] defendant's branch, after deducting the debt, is Rs.86,997.65. So, it can be seen that the value of share allotted to the 4[th] defendant's branch was higher than the value of share allotted to the 1[st] defendant's branch. 14. Even though the plaintiff contended that various debts mentioned in Ext.A1 are bogus, such bogus transactions are not specifically mentioned in the plaint, except Exts.X4 ands X5. The court below examined the question whether Exts.X4 and X5 are genuine transactions or not. Ext.X4 is a simple mortgage deed executed in favour of D.W.2 and **A.S. No. 224 of 1995** -: 11 :- Ext.X5 was executed by defendants 1 to 4 in favour of the mother of D.W.2 for an amount of Rs.10,000/-. Indisputably, Exts.X4 and X5 were executed before 1973. 15. According to the plaintiff, the 4[th] defendant was a man of unsound mind from 1973 to 1979 only and Exts.X4 and X5 were executed before 1973. As noted earlier, there is no evidence to show that the 4[th] defendant was inherently a man of weak mind. Thus, it could be seen that Exts.X4 and X5 were executed by the 4[th] defendant also, when he was a man of sound mind. Moreover, in this suit, the 4[th] defendant was set ex parte and he was not examined as a witness to prove the bogus nature of transactions in Exts.X4 and X5. No explanation was given for non-examination of the 4[th] defendant. On the other hand, D.W.2 deposed that Exts.X4 and X5 are bona fide transactions and Ext.X4 debt is seen to have been borrowed for discharging the loan taken for purchasing Exts.B1 and B2 properties and also for providing irrigation facilities to the family property. ## **A.S. No. 224 of 1995** -: 12 :- 16. As regards Ext.X5, it has come out in evidence that Ext.X5 mortgage deed was executed to discharge the liability when execution proceedings were initiated against the members of the family, under O.S.No.31/1969 and O.S.No.52/1970, for recovery of the owelty amount. Thus, the court below is justified in finding that Exts.X4 and X5 are not bogus transactions. Even if those debts were borrowed by the 4[th] defendant in his individual capacity and not for the benefit of the plaintiff, he has the pious obligation to discharge that debt, as those debts are binding on him. 17. In the above analysis, the court below is justified in finding that Ext.A1 partition deed is not inequitable or unfair or prejudicial to the plaintiff. 18. The next point to be considered is, was the 4[th] defendant a man of unsound mind at the time of execution of Ext.A2? 19. Coming to the challenge against Ext.A2 sale deed, the main ground is that the 4[th] defendant was a man of unsound mind and the appellant was a minor **A.S. No. 224 of 1995** -: 13 :- at the time of execution of Ext.A2 and exploiting the said unsound mind of the 4[th] defendant, Ext.A2 sale deed was got fraudulently executed in favour of defendants 7 to 13. It is true that Ext.A2 was executed on 4/10/1976 i.e., between 1973 and 1979. Admittedly, the 4[th] defendant remained ex parte in the suit and no written statement was filed by him. No satisfactory explanation was forthcoming for the nonexamination of the 4[th] defendant. According to the plaintiff, P.W.2, the maternal uncle of the plaintiff, was managing the properties for sometime and thereafter, the 5[th] defendant, the mother of the plaintiff, was managing the properties, due to the 4[th] defendant's incapability caused by his unsound mind. But, neither the 5[th] defendant was examined; nor was any satisfactory explanation given for the same. That apart, the first attestor to Ext.A2 sale deed was the brother of the 5[th] defendant i.e., the maternal uncle of the plaintiff. So, it is improbable that he joined along with the 1[st] defendant to defeat the right of the plaintiff, exploiting the unsound mind of the 4[th] **A.S. No. 224 of 1995** -: 14 :- defendant. 20. Admittedly, Ext.B23 rectification was also executed by the 4[th] defendant for correcting the mistake in the door number of the house shown in Ext.A2. That apart, after Ext.A2, as per Ext.B34, the 4[th] defendant had purchased another property and subsequently, he sold away that property by Ext.B35. The share of purchase money due to the 6[th] defendant and the plaintiff, who were minors at the time of Ext.A2, was reserved as per Ext.A2 and interest on the said unpaid purchase money seems to have been received by the 4[th] defendant and the receipt for the same was given to defendants 7 to 13. Thus, it could be inferred from the above mentioned transactions that the 4[th] defendant had applied his mind in each transaction and more particularly, he had taken much care and caution to protect the interest of the minors by making reservation in Ext.A2 in respect of their rights. 21. On the other hand, Exts.X1 and X2 are the documents relied on by the plaintiff to show that the **A.S. No. 224 of 1995** -: 15 :- 4[th] defendant was a man of unsound mind during the period from 1973 to 1979. Ext.X1 is an application for Transfer Certificate of her son filed by the 5[th] defendant. An application for Transfer Certificate of a student can be filed either by his father or mother. So, merely on the reason that the said application was filed by the wife when the husband was alive, it can never be presumed that the husband is a man of unsound mind. Ext.X2 is a paper publication made by the 5[th] defendant stating that the 4[th] defendant was a man of unsound mind and if sale deed was got executed from him, the same would not be binding on her. Even though the newspaper agent was examined, his evidence goes to the extent that the news item was entrusted to him for publication by the 5[th] defendant and she had paid the charges for the same. This Court is also of the opinion that the said publication is a self-serving document and no inference can be gathered that the person referred to in the publication is actually a man of unsound mind. P.W.4, local agent of the newspaper, has not given **A.S. No. 224 of 1995** -: 16 :- evidence to the effect that before making such a publication, he has verified the genuineness of the contents of the publication. In short, Ext.X2 paper publication cannot be taken as a testification of the alleged unsoundness of the 4[th] defendant. 22. It is also contended that the 1[st] defendant has filed a counter affidavit in E.P.No.40/1983 in O.S.No.39/1970 stating that the 4[th] defendant was a man of unsound mind during the period of 1973. 23. As rightly held by the court below, the contentions raised by the 1[st] defendant in another proceedings cannot be taken as his admissions in the present proceedings and no reliance can be placed on those contentions in another proceedings without considering the facts and circumstances involved in that case and the aforesaid view is supported by the decision of this Court in Narayana Pillai and Another v. Kesava Pillai and Others [1962 KLJ 389]. Thus, the court below is justified in rejecting Ext.A11 certified copy of the counter filed by the 1[st] defendant in E.P.No.40/1983. ## **A.S. No. 224 of 1995** -: 17 :- 24. As rightly observed by the court below, no reliance can be placed on the evidence of P.W.2, who is in inimical terms with the 1[st] defendant as well as the defendants 7 to 13. P.W.3 was examined as an Ayurvedic Doctor, who treated the 4[th] defendant for his unsound mind. But, in cross-examination, it has come out in evidence that he is a man without any basic qualification and he doesn't know any kind of Ayurvedic treatment. Hence, no reliance can be placed on his evidence also to prove the alleged unsoundness of the 4[th] defendant. 25. To sum up, even though the evidence adduced by the plaintiff is, in abundance, the entire evidence is not worthy of any credit and the court below is justified in rejecting the evidence in toto adduced by the plaintiff. In this respect, it follows that the plaintiff has miserably failed to prove that during the period between 1973 and 1979, the 4[th] defendant was a man of unsound mind and exploiting that situation, the plaintiff and the defendants 7 to 13 got executed Ext.A2 sale deed. **A.S. No. 224 of 1995** -: 18 :- 26. The next point to be considered is, whether there was any legal necessity compelling the 4[th] defendant to sell the property, by Ext.A2 sale deed? Ext.A2 was executed for a consideration of Rs.30,000/and out of that amount various amounts, including unpaid consideration due to the minors, plaintiff and the 6[th] defendant, were reserved with defendants 7 to 13 and later, the said reserved amounts were paid under Exts.B24 to B34. The aforesaid documentary evidence unequivocally prove that Ext.A2 sale deed was executed by the 4[th] defendant to avert the sale of the property and also to discharge other debts for which either suit was filed or E.P. was filed in execution or suit is likely to be filed. We also endorse the finding of the court below that such transactions made with an intent to discharge the liability and save the property could be expected from a prudent and sensible person only. In that view, no way it can be held that the 4[th] defendant was a man of unsound mind at the time of execution of Ext.A2 sale deed. That apart, Exts.B24 to B34 disprove the case of the ## **A.S. No. 224 of 1995** -: 19 :- plaintiff that the 4[th] defendant was a man of unsound mind. 27. Even though it was contended that consideration shown in Ext.A2 is inadequate, no evidence was forthcoming to substantiate any possibility to get more consideration. Exts.B24 to B34 show that the property was sold under the pressing necessity and in such a situation, it was not possible to get maximum price, as the seller had lost the bargaining capacity. 28. To sum up, the plaintiff has miserably failed to prove that the 4[th] defendant was a man of unsound mind at the time when Ext.A2 sale deed was executed and the 1[st] defendant and others succeeded in proving that there was a pressing legal necessity compelling the 4[th] defendant to sell the property and the consideration of the same is adequate in view of the circumstances surrounding the family prevailing at that time. It follows that the plaintiff has miserably failed to prove the grounds stated to set aside Ext.A2 sale deed. On a total analysis of the evidence on **A.S. No. 224 of 1995** -: 20 :- record, the court below is justified in dismissing the plaint. This appeal is dismissed with costs. Sd/- ## **(V. CHITAMBARESH, JUDGE)** Sd/- **(K. HARILAL, JUDGE)** **Nan/** //true copy// P.S. to Judge CONTINUED AT PAGE NO. 21 **A.S. No. 224 of 1995** -: 21 :- “As the appellant is an indigent person, no court fee need be realised from him” vide order dated 06/09/2016 in A.S.No.224/1995. Sd/- Registrar (Judicial)