Monakka Shinde W/O Somanath  vs Maruti Shinde S/O Somanath Shinde

Karnataka High Court
Monakka Shinde W/O Somanath  vs Maruti Shinde S/O Somanath Shinde on 9 October, 2017
Author: Sreenivas Harish Kumar
R.S.A. NO.5385/2012 (PAR, DEC & INJ)

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 in a divorce. Thereafter, his father married the plaintiff and at that time, he was a boy of 8-10 years old.

6. The defendant No.1 disputes that some of the items of suit property to be her self-acquisitions. He contends that his mother's health condition was not so much bad that his father had to incur huge medical expenses. In fact his mother was taken care of by her parents during her sickness. His father, being an employee of R.T.O., Belagavi had decent income, he was able to manage the family. Actually, his grandmother Dhudhakka was into the business of paddy processing and the plaintiff was assisting her. The plaintiff did not have her own income. Entire family was being managed by Dhudhakka; she was the head of the family practically. All the properties were acquired by the joint efforts of his father Somanath and Dhudhakka. The plaintiff was fully aware that the suit properties were the joint family properties. Some of the suit properties were purchased by his father in the names of his wife i.e., plaintiff and Dhudhakka only to overcome the procedural hurdles of obtaining permission from the Government. She voluntarily agreed for division as she knew very well that she had no independent and exclusive right over the properties that were acquired in her name. The terms of partition were finalized in the presence of one Monappa Omanna Kesarkar and S.S.Muchandi. The plaintiff herself opted to receive an amount of Rs.50,000/- in one lumpsum in lieu of her share in the family property and she acknowledged the receipt of this amount. There was no fraud. Defendant No.2 colluded with the plaintiff in getting the suit filed. He has denied the allegations against him that he tried to dispossess the plaintiff illegally from the house where she was staying. He has stated that the plaintiff voluntarily vacated the house in the month of May-2004 and handed over the keys to Monappa Kesarkar.

7. Defendant No.2 has virtually supported the plaintiff though he has filed separate written statement, in which he has also contended that the properties at Mumbai should have been included in the suit.

8. On 19.09.2013 this second appeal was admitted to consider the following substantial questions of law.

1) Whether the lower appellate Court was justified in setting aside the judgment and decree passed by the trial Court without considering the manner in which Ex.D1- Deed of Partition is registered?

2) Whether the lower appellate Court was justified in holding that no fraud is committed by defendants 1 and 2 against plaintiff in execution of Ex.D.1- Deed of Partition wherein some of the properties subjected to partition were absolute properties of plaintiff?

9. The trial Court came to conclusion to decree the suit for the reason that defendant no.1, who adduced evidence as D.W.1 admitted in his cross-examination that some of the properties were purchased in the name of plaintiff, that share allotted to her was not proper and correct, that only a meager amount of Rs.50,000/- was given to her and that there was no equitable partition between the defendants and the plaintiff. Referring to the evidence of D.W.2 and D.W.3, the trial Court held that though they stated that there was no fraud or misrepresentation, no ordinary prudent man would agree to receive only Rs.50,000/- and just a right of residence when there were huge joint family properties. Ascribing these reasons, the trial Court held that the partition deed dated 09.10.2002 was null and void and ordered for reopening of partition.

10. The First Appellate Court, upon re-appreciation of evidence, held that the document dated: 09.10.2002 was a family settlement. To see that differences among the plaintiff and the defendants were settled, they referred the matter to Panchayatdars on whom they had confidence. The parties agreed to the arrangement suggested by the Panchayatdars and Ex.D.1 was the result of such a settlement. Mere unequal distribution was no ground to impeach that family arrangement. The appeal was ultimately allowed.

11. The learned counsel for the appellant/plaintiff argued that the First Appellate Court has not appreciated the facts and evidence properly and it gives rise to a substantial question of law. He argued that this court can re-appreciate the evidence if the first appellate court has reached wrong conclusions and drawn erroneous inferences. He garners support from the decisions of the Supreme Court in the cases of Krishna Mohan Kul Alias Nani Charan Kul and another v. Pratima Maity and Others [(2004) 9 SCC 468] and Pratima Chowdhury v. Kalpana Mukherjee and another [(2014) 4 SCC 196].

12. The learned counsel for respondent/defendant No.1 argued that there is no scope for appreciation of evidence in the second appeal; if the First Appellate Court has re-appraised the evidence by applying its independent mind, those findings cannot be interfered with even if they are found to be wrong.

13. As regards this argument, it has to be stated that the findings of the First Appellate Court, on facts, cannot be ordinarily interfered with if the First Appellate Court is found to have appreciated the evidence independently. However, if perverse approach in appreciation of facts and evidence is apparent, it gives rise to substantial question of law, and there is scope for interfering with facts even in second appeal.

14. The appellant's counsel tries to make out a case by arguing that the First Appellate Court adopted a wrong approach by throwing the burden on the plaintiff to prove fraud and misrepresentation in regard to execution of partition deed dated 09.10.2002. He argued that the plaintiff is an aged woman and illiterate. The defendants were in a position to dominate her will. There existed a fiduciary relationship between the plaintiff and the defendants, and therefore, the burden should have been cast on the defendants to prove that they acted fairly and that there was no misrepresentation or undue influence or pressure on the plaintiff. He has placed reliance on 1) Poosathurai v. Kannappa Chettiar and others (AIR 1920 PC 65), 2) Krishna Mohan Kul Alias Nani Charan Kul and another v. Pratima Maity and Others [(2004) 9 SCC 468], 3) A. Venkappa Bhatta and others v. Gangamma and others (AIR 1988 Ker 133), 4) Sher Singh and others v. Pirthi Singh and others (AIR 1975 All 259), 5) Guljan Bibi v. Nazir-uddin Mia (AIR 1975 Gau 30), and 6) Smt. Chinnamma and others v. The Devanga Sangha and others (AIR 1973 Mysore 338).

15. Needless to say that whenever plaintiff alleges fraud, misrepresentation and undue influence, the 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 the general principle. But an exception to this general principle is that though a party to a suit alleges fraud or misrepresentation or undue influence, the burden lies on the opponent to prove that the transaction was fair throughout, if the 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 a particular transaction or one's general affairs or business. What is the responsibility of a person who is trusted by another is very well explained by the Supreme Court in the case of Pratima Chowdhury v. Kalpana Mukherjee and another, [(2014) 4 SCC 196]. At page 239, it is observed as below:-
"A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage."

16. This rule is equally applicable to an old, illiterate, ailing person, who is unable to comprehend the nature of the document or contents thereof. Even in the other decisions cited by the learned counsel for appellant on this aspect, same is the principle; there is no need to refer to all the decisions to maintain brevity.

17. While the proposition that the onus is always on the person in whom confidence is reposed by another to prove the transaction is fair and conscionable, is well accepted, 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. In fact in Pratima Chowdhury (supra), it is further held in page 239 as below:-
"When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast against the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position."

18. In Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib and others, (1967) 1 SCR 331, the Hon'ble Supreme Court has held as below:-
"8. It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the judicial committee of the Privy Council in Poosathurai V/s. Kannappa Chettiar and others.
"It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point influence' alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, 'undue'. "
(underlining by me)

19. Later, the Hon'ble Supreme Court, in the case of M. Rangasamy v. Rengammal and others (AIR 2003 SC 3120) had an occasion to refer to the judgment in the case of Subhas Chandr Das Mushib v. Ganga Prasad Das Mushib and others to hold that mere existence of close relationship will not lead to a presumption of undue influence. It is held as below :
"14. The only issue out of seven which were framed by the learned Subordinate Judge at the trial of the suit which has any bearing on this point Issue No. 5. This reads: "Is the deed of gift by the grandfather to defendant 1 valid and true : If so, is the suit maintainable without setting aside the deed of gift?"
15. It will be noted at once that even the expression "undue influence" was not used in the issue. There was no issue as to whether the grandfather was a person of unsound mind and whether he was under the domination of the second defendant."

20. Reference to a Pratima Chouwdhary's case (supra) must be made again for, in this decision three different stages involved in proving the case of undue influence has been explained by making a reference to earlier decision of the Hon'ble Supreme Court in the case of Subhas Chandr Das Mushib's case (supra) and of the Privy Council in Raghunath Prasad v. Sarju Prasad (AIR 1924 PC 60), it is held in page 238 as below:-
"6. Sub-Section (3) of the Section throws the burden of proving that a contract was not induced by undue influence on the person benefiting by it when two factors are found against him, namely, that he is in a position to dominate the will of another and the transaction appears on the face of it or on the evidence adduced to be unconscionable.
7. The three stages for consideration of a case of undue influence were expounded in Raghunath Prasad v. Sarju Prasad in the following words: (IA P.105) '... In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached, namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced byundue influence is to lie upon the person who was in a position to dominate the will of the other."

21. If the present case is examined in the light of the above principles, the first thing that appears is that the plaint is not founded on fiduciary relationship between the plaintiff and the defendants. The plaintiff is the natural mother of defendant No.2 and stepmother of defendant No.1. She is illiterate and aged. Yet, there is no pleading in conformity with Order VI Rule 4 of C.P.C. that the first defendant was in a position to dominate the will of plaintiff. She has not pleaded that she had placed absolute confidence in him. Indeed she has stated that the defendants misrepresented to her that she would be given 1/3rd equal share. She has made this allegation against both the defendants, but it can be seen very clearly that it is against first defendant she has a grouse. To appreciate the arguments of appellant's counsel that the onus was on defendant No.1 to establish that the transaction of partition was very fair, the plaintiff should have firstly pleaded that she had reposed confidence in him and depended on him in every transaction and secondly proved it. The defendant No.1, even according to plaintiff, was staying away being a police officer in the service of Government of Maharashtra. It is not her case that she was living with him, so that there were chances of her being put to his pressure. There is no pleading and proof. Moreover, the second defendant, her natural son, has supported the case of plaintiff. That means the plaintiff was in a position to obtain the advice of her son, who is not illiterate. The second defendant also states in his written statement the defendant No.1 played a major role in preparation of partition deed and put pressure on him. He has taken a share equal to that of plaintiff, and this he does not deny. Suit is for partition; every party is interested. Having supported his mother, and as he has equal share in the properties, he could have proved or established that the defendant No.1 played major role and defrauded him and his mother. If according to 2nd defendant, his mother's interest has not been well protected and equal share was not given to her as was made known to her before execution of the partition deed, nothing prevented him from entering the witness box for proving the fraud played by defendant No.1. It is true that the trial Court raised the issue in this regard throwing burden on the plaintiff and that the Appellate Court has also held that the plaintiff has not proved the said issue. I do not think, that in the circumstances as discussed above, the First Appellate Court adopted a wrong approach. The judgment of the First Appellate Court shows independent application of mind while re-appreciating the evidence. There are no perverse findings. Hence, there is no need to appreciate the evidence again in this second appeal.

22. The learned counsel for the appellant has raised another point that construction and
interpretation of a document also gives rise to a substantial question of law. In this regard he referred to judgment of the Hon'ble Supreme Court in the case of M. B. Ramesh (Dead) by LRs v. K.M. Veeraje Urs (Dead) by LRs and others, [(2013) 7 SCC 490]. According to the learned counsel, the partition deed, Ex.D.1, contains serious flaws and illegalities which invalidate the document. The First Appellate Court has not noticed this aspect of the matter, and therefore, argued for examining the document by considering it as a substantial question of law. In fact, the two substantial questions of law framed by this court at the time of admission touch this point.

23. The learned counsel, in this regard, argued that in Ex.D.1, it is mentioned as "in lieu of her share". This itself shows deception. The plaintiff has not been given the legitimate share that she is entitled to. There is no equal distribution of the property among the plaintiff and defendants 1 and 2. Many items of the suit property are self- acquisitions of the plaintiff. In fact, even after execution of Ex.D.1, the title deeds of the properties have been with the plaintiff. If really, Ex.D.1 is a partition deed, which came into existence with the consent of the plaintiff, she would have handed over those documents to the defendants. The very fact that the originals are with the plaintiff shows that Ex.D.1 was brought into existence by playing fraud on her. He also argued that D.W.2 and D.W.3 are interested witnesses.

24. The learned counsel for the appellant further argued that Ex.D.1 was executed on 9.10.2002. It was presented for registration on 10.10.2002. There is no explanation for the delay. Then the said document was presented by defendant No.1 on 10.10.2002 at about 5.45 p.m. i.e., after closure of the business hours of the Sub- Registrar's office. Ex.D.1 does not contain mandatory endorsements, as required under Sections 52, 58 and 59 of the Indian Registration Act (for short "the Act"). An amount of Rs.50,000/- is separately shown as property in Ex.D.1. Actually it is not an identifiable property. The said amount is also not described as being in the form of bank deposits, securities etc., so as to say that the said property is in the form of actionable claim. Therefore, the said amount is unreal and transient property, which cannot be included for partition along with immovable properties. The Sub- Registrar should have been examined. Ex.D.1 is in English and the plaintiff is illiterate. There is no statement by the defendants or any of the witnesses that the contents of the document were read over and explained to the plaintiff. There is violation of Rule 73 of the Karnataka Registration Rules, 1965 (for short, 'the Rules'). For all these reasons, Ex.D.1 is vitiated and it is null and void. In support of his arguments, the learned counsel has referred to the judgment of the Division Bench of this Court in the case of Kenchawwa v. Amagonda (ILR 1988 KAR 1185) and Nand Lal Kapur and others v. Lakshamma (since deceased by LRs and others) (ILR 1967 Mysore 217). 25. The learned counsel for the respondent argued that Ex.D.1 is basically a deed of family settlement. Though it is captioned as partition deed, if its contents are read, it becomes very clear that it is a settlement between the plaintiff and defendants. In a settlement, there need not be equal distribution of the properties. If the parties arrive at a settlement with regard to distribute one of the properties of the family, it should be given into effect and it has sanctity. In this regard, he relied on the judgment of the Hon'ble Supreme Court in the case of Kale and others v. Deputy Director of Consolidation and others (AIR 1976 SC 807). 26. The learned counsel for the respondent further argued that the First Appellate Court has given due weightage to the evidence adduced by D.W.2 and D.W.3. These two witnesses were the friends of the plaintiff's husband Somanath Shinde. Their evidence is impartial and they have clearly stated that the contents of Ex.D.1 were explained to the plaintiff by the Sub-Registrar. If the crossexamination of these two witnesses is perused, it becomes very clear that they have not been impeached. There was no need to examine the Sub-Registrar. The document cannot be doubted just because it was presented on the next day of its execution. Likewise, if the document was registered at 5.45 p.m. on 10.10.2002, that does not get vitiated. The law does not prohibit the registration of the document after office hours. It does not mean that the parties went to Sub- Registrar's office at 5.45 p.m. only, they might have gone earlier and the Sub-Registrar might have received the document for registration purpose at that time.

27. With regard to payment of Rs.50,000/- to the plaintiff, the learned counsel for the respondent argued that though it was not the property of the family, it was the amount agreed to be given to the plaintiff and that the plaintiff in fact had received that amount. When it was a settlement, necessarily the amount to be given to the plaintiff should be separately shown in the document. For this reason, the document does not get vitiated. He further argued that examining the validity of the document from the angle of Sections 52, 58 and 59 of the Act arises when one of the parties to the document disputes it. Here, the plaintiff does not dispute the execution of Ex.D.1. Her only grievance is that she is not given equal share. Moreover, making an endorsement by the Sub-Registrar under Section 58(1)(c) of the Act with regard to payment arises only if payment is made before him at the time of registration. In this case payment was made earlier. Therefore, Section 58(1)(c) of the Act is not applicable. The plaintiff herself has stated in the plaint that all the properties belong to joint family and that in the cross-examination she has clearly admitted that she was doing rice business with her mother-in-law and whatever they acquired from the business income became the joint family property. The plaintiff cannot claim to be an exclusive owner. If the original documents of the properties were retained by her after execution of Ex.D.1, it cannot be said that there was no settlement without the consent of the plaintiff. Therefore, he argued that Ex.D.1 must be given into effect.

28. On this point, it is to be held that certainly the interpretation and construction of a document gives rise to substantial question of law. When one party puts forward a document for asserting his right, and the same document is assailed by another party, to know the true purport of the document, it should be interpreted. The Hon'ble Supreme Court in the case of M. B. Ramesh (Supra) has held as below:-
"16. We may, however, note in this behalf that as held by a Constitution Bench of this Court in Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties, necessarily raises a question of law. That apart, as held by a Bench of three Judges in Santosh Hazari v. Purushottam Tiwari, whether a particular question is a substantial question of law or not, depends on the facts and circumstances of each case. When the execution of the will of Smt Nagammanni and construction thereof was the subject-matter of consideration, the framing of the question of law cannot be faulted. Recently, in Union of India v. Ibrahim Uddin, this Court referred to various previous judgments in this behalf and clarified the legal position in the following words:"

29. Before interpreting Ex.D.1, it is necessary to state here that the plaintiff may have stated in the plaint that she was doing rice business and that from her business income, she purchased in her name, some of the items of the suit property. But in the cross-examination, she has clearly given answers that her mother-in-law was managing the affairs of the family during her lifetime, that she (mother-in- law) was doing rice polishing business and that she (plaintiff) was also doing business with her (mother-in-law), that the income derived from the business was kept in the joint account of the family, and that her mother-in-law used to keep the money in the joint account of the family and that from the income of the rice business, they purchased some of the properties. So these answers of P.W.1, the plaintiff, make it very clear that she cannot claim exclusive right over some of the items of the suit property. The First Appellate Court has considered this aspect of the matter. (Para 14 of the judgment of the First Appellate Court).

30. Ex.D.1 needs to be examined from the angle of applicability of Sections 52, 58 and 59 of the Act. Section 52, 58 and 59 of the Act are extracted here as below:-
52. Duties of registering officers when document presented. - (1)(a) The day, hour and place of presentation, [the photographs and finger prints affixed under Section 32A], and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;
(b) a receipt for such document shall be given by the registering officer to the person presenting the same; and
(c) subject to the provisions contained in Section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.
(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.
58. Particulars to be endorsed on documents admitted to registration. - (1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under Section 89, there shall be endorsed from time to time the following particulars, namely:-
(a) the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
(b) the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and
(c) any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
(2) If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.
59. Endorsements to be dated and signed by registering officer.-
The registering officer shall affix the date and his signature to all endorsements made under Sections 52 and 58, relating to the same document and made in his presence on the same day.

31. Perusal of Ex.D.1 shows compliance of Section 52 of the Act being there. Even compliance of Section 58 (1) (a) & (b) of the Act is very much forthcoming. With regard to compliance of Section 58 (1) (c) of the Act, it has to be stated that endorsement by the registering officer is necessary when payment of money or delivery of goods is made in his presence. Ex.D.1 shows that amount of Rs.50,000/- was not paid to the plaintiff in the presence of the Sub-Registrar. It was paid, probably at the time of execution of Ex.D.1 on 09.10.2002. The plaintiff has acknowledged the receipt of Rs.50,000/-. Therefore, compliance under Section 58(1)(c) of the Act was not necessary. The signature of the registering officer with date can be seen, therefore there is compliance of Section 59 of the Act.

32. Rule 73 of the Rules states that it is not the duty of the registering officer to enquire into the validity of a document presented before him for registration or to attend to any written or verbal protest against the registration of a document, if the execution is admitted. But only requirement is if the executants are unable to read, the document shall be read out and if necessary, explained to them. If the document is in a language which the executants do not understand, it must be interpreted to them. In my opinion, no doubt a duty is cast on the Sub-Registrar to explain the contents of the document presented for registration to a party who is illiterate or one who does not know the language of the document, but the whole document does not become vitiated for non-compliance of this. If the party is aware of the contents of document before it was presented for registration, non-compliance of Rule 73(i) of the Rules need not be given any importance. In the present case, the evidence of P.W.1 shows that even 15 days before the execution of Ex.D.1, she knew that properties would be going to be partitioned. The witnesses D.W.2 and D.W.3 have spoken very clearly in their examination-in-chief itself that Sub-Registrar explained the contents of the document to the plaintiff. Particularly on this aspect there is no cross- examination. They have also stated very clearly that the entire talks were held in the presence of the plaintiff and the defendants. They have stated that they were the friends of Somanath Shinde, the husband of the plaintiff. Their evidence discloses that they are disinterested in any of the parties. There is no substance in the argument of the learned counsel that they are interested witnesses. They have not been impeached in the cross-examination. It may be true that Ex.D.1 does not disclose an endorsement by the Sub-Registrar that he explained the contents of Ex.D.1 to plaintiff, but when it is very much forthcoming from the evidence that she knew what was the nature of the settlement going to take place, absence of endorsement by the Sub-Registrar does not make the document illegal.

33. It is true that Ex.D.1 was executed on 09.10.2002 and that it was registered at 5.45 pm on 10.10.2002. According to the appellant's counsel, document was registered after business hours of the Sub-Registrar's office. This cannot be a ground for invalidating the entire document. There is no bar for registration of a document after office hours, it is for the registering officer to decide whether a document can be accepted for registration after office hours or not. The document shows that the document was presented at 5.45 p.m. for registration. It means to say that the parties might have gone to the office much before that time and for this reason the Sub-Registrar might have entertained the registration. Section 23 of the Indian Registration Act makes it very clear that a document has to be presented for registration within 04 months from the date of execution. For this reason, if the document was registered on 10.10.2002, it does not invalidate the document.

34. The two judgments cited by the appellant's counsel, viz., Nand Lal Kapur and others v. Lakshamma (since deceased by LRs and others), and Kenchawwa V. Amagonda are not applicable to the present case. In the first judgment, the facts are that defendants No.1 and 2 deposed that the contents of the document were not explained to them and this evidence was not challenged in the cross-examination. In the second judgment, the plaintiff took a specific stand in the plaint and also deposed that she did not execute the suit document. Same is not the position here in the present case. As discussed above, the plaintiff had the knowledge of the document going to be effected and that she has deposed that she did put her thumb impression on the document.

35. The finding of the First Appellate Court is that Ex.D.1 is a family arrangement or settlement. It has relied on the judgment of the Hon'ble Supreme Court in the case of Ram Charan Das v. Girija Nandini Devi and others (AIR 1966 SC 323). The clear finding of the First Appellate Court is extracted here:-
"34. In the present case, the intention was to see that the differences amongst plaintiff and defendants were amicably settled, and precisely for that reason the parties referred the matter to Panchayatdars, namely, DW.2, DW.3 and one Anant Joshi. Said persons were those on whom the parties had confidence. Said persons did not have any personal interest in the subject matter of the suit. Those persons thought it fit that the properties be divided between defendants 1 and 2, and that the plaintiff be given right of residence in the house which is situated in the 1st Floor at Kadolkar Galli property. Their decision was accepted and it is only after the said acceptance the document Ex.D.1 came to be executed. Mere allegation that there has been unequal distribution of share is no ground to impeach such a family arrangement."

36. The Hon'ble Supreme Court in the case of Kale and others (Supra), a judgment cited by the respondent's counsel, has held as below :-
"19. Thus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds."

37. In the light of the principles laid by the Hon'ble Supreme Court, if the whole case is examined, I am too of the opinion that Ex.D.1 is actually a family settlement though captioned as partition deed. Just because Rs.50,000/- and right of residence till her lifetime has been given to plaintiff, it cannot be said that the plaintiff did not agree for such an arrangement. The evidence is to the effect that she did agree for such an arrangement. An amount of Rs.50,000/- given to plaintiff may not be available in the form of a deposit or a security. But it could be the amount agreed by defendants No.1 and 2 to be given to the plaintiff. P.W.1 has been cross-examined by the counsel for defendant No.2 also. In this cross-examination, a suggestion is given to P.W.1 that defendant No.2 was ready to give his part of Rs.25,000/-. So this suggestion implies that each of defendants 1 and 2 agreed for paying Rs.25,000/- to the plaintiff. Merely because Rs.50,000/- is shown as a property in Ex.D.1, the whole document cannot be looked with askance. This was the arrangement that the plaintiff and defendants agreed to and it cannot be made ineffective on the basis of grounds urged by the appellant's counsel.

38. The appellant's counsel raises another question of law alternatively to the points already referred and this question, which appears to be substantive, touches applicability of Section 14(1) of the Hindu Succession Act. He invoked Order XLI Rule 33 of C.P.C. to consider the case of plaintiff within the parameters of Section 14(1) of the Hindu Succession Act, in that the limited life interest given to her under Ex.D.1 in a residential premises actually allotted to defendant No.1 enlarges into her absolute estate. To substantiate his argument that even at the stage of second appeal, the powers under Order XLI Rule 33 of C.P.C. can be exercised, he has placed reliance on the judgments of the Hon'ble Supreme Court, namely, K. Muthuswami Gounder v. N. Palaniappa Gounder [(1998) 7 SCC 327], C.Cheriathan v. P. Narayanan Embranthiri [(2009) 2 SCC 673], Ramachandra Nathu Ghadage v. Rajaram Nathu Gadage [2008 (2) Mh.L.J.754] and Umakanta Rao v. Lalitha Bai (ILR 1988 KAR 3067).
On the point of applicability of Section 14(1) of Hindu Succession Act, he has referred to the decisions - 1) Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (Smt) and others [(1996) 8 SCC 128] and 2) Chellammal and another v. Valliammal (1990 Mad.L.W. 588).

39. Meeting this argument, the respondents' counsel argued that applicability of Section 14(1) of the Hindu Succession Act must be examined in the light of right of the plaintiff before 1956. Here, the plaintiff had 1/3rd equal share in all the suit properties and she voluntarily gave up her share by taking Rs.50,000/-. Right of residence given to her is in the property of defendant No.1. Defendant No.2 has also taken equal half share. Therefore, her case squarely falls under Section 14(2) and not under Section 14(1) of the Hindu Succession Act. He also argued that the plaintiff is no longer residing in the house; she voluntarily vacated the house as can be gathered from the oral evidence, and when she no longer possesses the house, she cannot take shelter under Section 14(1) of the Hindu Succession Act. He has garnered support from the judgments of the Hon'ble Supreme Court in the cases of Kothi Satyanarayana v. Galla Sithayya and others (AIR 1987 SC 353) and Himi D/o. Lachhmu and another v. Hira Devi widow of Budhu Ram and others (AIR 1997 SC 83).

40. On these points of arguments, firstly it has to be stated that there is no impediment for invoking Order XLI Rule 33 of C.P.C. even at the stage of second appeal. Order XLII Rule 1 of C.P.C. states that, so far as may be Order XLI of C.P.C. shall apply to appeals from appellate decrees. If the facts and circumstances are as such that in the second appeal, after hearing on the substantial question of law, if it is possible to come to a conclusion that the relief requires to be moulded in tune with actual relief that ought to have been granted, certainly Order XLI Rule 33 of CPC can be invoked.

41. In Vaddeboyina Tulasamma and others v. Vaddeboyina Sesha Reddi (AIR 1977 SC 1944), the Hon'ble Supreme Court has interpreted Section 14(1) and (2) of Hindu Succession Act, what is held is as below:-
"Sub-Section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-Section (2) is more in the nature of a proviso or exception to sub-Section (1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-Section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficiency and deprive a Hindu female of the protection sought to be given to her by sub-section (1). Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property."

42. In Chellammal v. Valiammal, (Supra) the Hon'ble Supreme Court has held as below:-
"15. It is settled law that if a partition deed or any other instrument only recognised a pre-existing right of the widow, it is not a case of the widow 'acquiring' the property as contemplated under that sub-Section and that under such circumstances that sub-Section would have no application. But when S.14(1) speaks of a female Hindu acquiring property before or after the commencement of the Act, the question is whether the acquisition contemplated should necessarily be without any preexisting right whatsoever. The explanation to S.14(1) defines the word 'property' occurring in that sub-Section as including both moveable and immoveable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance etc. The contention on behalf of the plaintiff-respondent is that in this case, in any event, there having been a partition (whether the widows were entitled to enter into a final and absolute partition or not) in the year 1943, it must be held that the plaintiff acquired the suit properties under the said partition as contemplated under S.14(1) and as she is in possession, her widow's estate became an absolute estate. However, the contention on behalf of the appellants is that the plaintiff did not 'acquire' the suit properties under the partition inasmuch as she along with the first defendant had inherited a widow's estate in the properties on the death of their husband. But it should be remembered that the explanation to S.14(1) specifically refers to acquisition of properties under a partition. One can get a share under a partition only if he or she had some pre-existing right in the same. It is true that in a partition in a family, a woman may be allotted certain properties even though she had no pre-existing right to a share because of her right to maintenance or arrears of maintenance. But as already seen the explanation to S.14(1) specifically refers to property acquired in lieu of maintenance or arrears of maintenance apart from property acquired at a partition. What I stress is that the words 'acquired by a female Hindu......... at a partition' would not refer to properties given to a female Hindu (even though it might be under a partition deed) in lieu of maintenance or arrears of maintenance, for the simple reason, the explanation refers to acquisition of properties in lieu of maintenance or arrears of maintenance as distinct from property acquired at a partition. If a female Hindu does not have a pre-existing right to a share and she is not given property in lieu of maintenance or arrears of maintenance, but still if property is given to her under a partition deed it would be a case of pure gift. The mere fact that the property is given to the female Hindu under a partition deed would not mean that she did not acquire the property by way of gift and that she so acquired 'at a partition'. I am of the view that the words 'acquired by a female Hindu...... at a partition' do not mean that she should not have had any pre-existing right in the property."

43. The learned counsel for appellant has referred to para 28 of the judgment in the case of Dr. Mahesh Chand Sharma's case (Supra). It is as below:-
"28. Now, we come to the third important event, viz., the enforcement of the Hindu Succession Act and its effect. The Act came into force in June, 1956. By operation of Section 14 of the said Act, the right of residence given to Satyawati in the first floor of the Doctor's Lane house ripened into an absolute title inasmuch as the said right was given to her in recognition of a pre-existing right to maintenance inhering in her. Even under the Hindu Law obtaining prior to the enforcement of Hindu Adoptions and Maintenance Act, 1956, the son was under a personal obligation to maintain his mother and he was bound to maintain her whether or not he inherited property from his father. [See Para 548 of Mulla's Hindu Law at P.552 (16th Edn.)]. Under the settlement, Satyawati was given not only the right of residence in the first floor but also a sum of Rs.125/- per month in cash towards her maintenance. It was further provided under the settlement that if Satyawati did not intend to reside in the aforesaid portion, the first defendant shall pay her Rs.150/- per month as maintenance instead of Rs.125/- per month. This clearly indicates that the right of residence was given to her in lieu of and in recognition of her pre-existing right to maintenance. Once this is so, it is sub-Section (1) of Section 14 that applies and not sub-Section (2) vide V. Tulasamma v. V. Sesha Reddi. It has recently been held by a Bench of this Court (S.P. Bharucha, J. and one of us, S.B. Majmudar, J.) in Mangat Mal v. Punni Devi that a right of residence given for life to a female Hindu in a property plus a sum of money in lieu of her right to maintenance ripens into full ownership on the coming into force of the Act. Accordingly, it must be held that on the date of coming into force of the Hindu Succession Act, 1956, Satyawati became the absolute owner of the first floor of the Doctor's lane house property.

44. The Hon'ble Supreme Court in Kothi Satyanarayanan v. Galla Sithayya and others AIR 1987 SC 353) had an occasion to examine the applicability of Sections 14(1) and 14(2) of the Hindu Succession Act in the light of settlement deed. What is held by Hon'ble Supreme Court is as below:-
"5. The Settlement Deed is an instrument contemplated under sub-Section (2) and admittedly it created a restricted estate in favour of the widow. Therefore, sub-Section (1) of Section 14 would not be attracted. The submission of the appellant's learned counsel that the Settlement deed brought the properties covered by it in exchange or in lieu of properties unauthorisedly alienated by Ramamurty and as the widow had full title in the alienated property, title must be held to have accrued in favour of the widow in the properties covered by the settlement cannot be accepted."

45. In Himi D/o. Lachhmu and another, (AIR 1997 SC 83), following the principles enunciated in V. Vaddeboyina Tulasamma's case (supra), the effect of compromise in a suit was considered for applying Section 14 of the Hindu Succession Act, and what is held in this regard is as follows:-
"Applying the aforesaid settled legal position to the facts of the present case it must be held that the Compromise Decree for the first time created a right in favour of Bai Utti to remain in possession of the property belonging to Bai Lachhmu only during her lifetime and as that right was conferred for the first time under the Consent Decree and was not in lieu of any pre-existing right of Bai Utti in Bai Lachhmu`s property Section 14 sub-Section (2) applied to the facts of the case and not Section 14 sub- Section (1). It is difficult to appreciate how the High Court persuaded itself to hold that as the Will was not proved on record and as the donees by claiming the suit properties from the donor Bai Utti were strangers to the Consent Decree they were not bound by the admission of Bai Utti in the Consent Decree. It is obvious that the contesting respondents herein who were donees of the properties could not claim a better title to the suit properties than what was available to the donor Bai Utti. If Bai Utti was not the full owner of the properties she had no right to gift away these properties in favour of the respondent- donees. They could not be said to be strangers to the Consent Decree, on the contrary, they were claiming through one of the parties to the Consent Decree, namely, Bai Utti. The obligations flowing from the Consent Decree and which were binding to the donor Bai Utti would necessarily bind the donees, namely, the respondents who stepped in the shoes of Bai Utti. They cannot claim any better right than what the donor had only a personal right to occupy the properties during her lifetime, she could not have conveyed any title of the properties to the donees. It is equally difficult to appreciate how the learned Single Judge of the High Court could hold that admissions of the predesor-in-title of the respondentdonees were not binding on the respondents. For all these reasons, therefore, it must be held that the High Court was in error in interfering with the Decree for possession as passed by the Trial Court and as confirmed by the First Appellate Court by holding that Section 14 sub-Section (2) of the Act was not applicable to the facts of the present case and Bai Utti had become the full owner of the suit properties pursuant to the said provision."

46. On analysis of the principles, it can be said that if a limited right given to a woman in a property should enlarge into her absolute estate in accordance with Section 14(1) of the Hindu Succession Act, she must have a pre- existing right. If a limited right is created independently of pre-existing right, Section 14(2) of the Hindu Succession Act comes in operation. If limited right over a property is conferred on a woman through settlement or compromise, Section 14(2) applies and not Section 14(1). If a woman relinquishes her pre-existing right when a settlement or compromise takes place, and during that settlement or thereafter, a life estate is created, it amounts to creation of a right anew in a woman and Section 14(2) is applicable. In fact, the Hon'ble Supreme Court in the case of Dr. Mahesh Chand (Supra), has recognized the effect of settlement and held as below:-
"30. We may pause here and append a note of explanation. It is true that under the 1942 Will, the bequest to Satyawati was only for her life and the bequest to "the legal heirs of the testator", i.e., to the first defendant, vested in him on the death of the testator, as held by us and for the reasons assigned hereinbefore. But all this is subject to the statutory provisions contained in Section 14(1) of the Hindu Succession Act. This statutory provision supersedes the recitals in the Will. By virtue of Section 14(1) of the said Act, the limited estate of Satyawati (given to her under the 1942 Will) would have ripened into absolute estate if Satyawati had been 'possessed' of the entire Doctor's Lane house on the date of commencement of the Hindu Succession Act. But she was not. She had given up her possession and right to possession over the First floor under the 1955 Settlement. She was 'possessed' of only the first floor of the house. Secondly, and more important, first defendant is basing his title to the Doctor's Lane house on the 1955 settlement. As stated hereinabove, both Satyawati and the first defendant arrived at a particular settlement notwithstanding their respective claims and contentions. Satyawati never challenged the said settlement during her lifetime. The settlement cannot, therefore, be held to be involuntary or inoperative. Satyawati, in fact, acted for a number of years as the General Power of Attorney of her son, the first defendant, and managing his properties in India. Merely because in these proceeding, the 1942 Will is held to be the last and valid Will of Ram Nath, the settlement of 1955 cannot be ignored or brushed aside. It is also nobody's case that the settlement was not bonafide or that it was not acted upon. For these reasons, it must be, and is, held that Satyawati became the absolute owner only of the first floor of the Doctor's Lane house - and not of the whole house."
(underlining by me)

47. Harking back to the facts of the instant case, by being a party to Ex.D.1, the plaintiff impliedly relinquished her right for equal share in the suit properties and received an amount of Rs.50,000/- from defendants No.1 and 2. As has been held already, Ex.D.1 is a family settlement. Right of residence given to plaintiff till her lifetime in a house allotted to the share of defendant No.1 is by virtue of settlement only and not in recognition of her pre-existing right. If at all she needs to be maintained, the primary obligation is on her natural son i.e. defendant No.1. If defendant No.1, her stepson, agreed for accommodating her till her lifetime in a house allotted to him, it is nothing but permitting her to stay there, and nothing more. Probably, the position would have been otherwise, if the house was allotted to plaintiff till her life time, without allotting it to the defendant No.1. In these circumstances, the plaintiff cannot claim to have become absolute owner of the house taking shelter under Section 14(1) of the Hindu Succession Act. I have no hesitation in also expressing my opinion that neither Section 14(1) nor 14(2) of the Hindu Succession Act gets attracted when defendant No.1 allowed the plaintiff to stay in his  house. If at all, Section 14 of the Hindu Succession Act has to be applied, it's sub-Section (2) that can be applied here.

48. From the above discussion, I arrive at a conclusion that the appeal should fail, accordingly appeal is dismissed confirming the judgment of the First Appellate Court. There is no order as to costs.

No comments:

Post a Comment