Saturday, 26 October 2019

Whether consent letter can be treated as relinquishment deed?

However, defendant No. 1/appellant herein intends to deny the said share of the plaintiff by placing reliance on Ex. D-2. Ex. D-2 cannot be considered in law to be a relinquishment of plaintiff's right, tide and interest in the suit schedule properties. The said consent letter may have been given for the purpose of entering the name of defendant No. 1 in the revenue records. The said consent letter would not amount to a relinquishment of the right, tide and interest of the plaintiff in the suit schedule properties. Even the said consent letter has not been believed by the trial court, nor Ex. D-2 could be equated to a deed of relinquishment. Any deed of relinquishment would require registration as per Section 17 of the Indian Registration Act, 1908. In the absence of there being any deed of relinquishment which has been registered in accordance with law, it cannot be held that the plaintiff has given up her right, title and interest in the suit schedule properties.

IN THE HIGH COURT OF KARNATAKA (DHARWAD BENCH)

Regular First Appeal No. 100377 of 2017

Decided On: 04.02.2019

 Lokappa  Vs. Shekavva and Ors.

Hon'ble Judges/Coram:
B.V. Nagarathna and A.S. Bellunke, JJ.

Citation: AIR 2019 Karnat 119

1. There is a delay of 696 days in filing the appeal. We have nevertheless heard learned counsel for the appellant on merits in order to ascertain as to whether the appeal would call for admission and a detailed hearing by this Court.

2. This appeal assails the judgment and decree passed in O.S. No. 235/2014 dated 21.09.2015 by III Additional Senior Civil Judge, Hubballi.

3. For the sake of convenience, parties shall be referred to in terms of their status before the trial court.

4. Respondent No. 1/plaintiff filed the suit seeking the relief of partition and separate possession of her 1/3rd share in the suit schedule properties by metes and bounds. According to the plaintiff, plaintiff and defendants are the children of late Dhakappa Kashenavar and Smt. Sankamma. Dhakappa had got landed and house property described in the plaint schedule under a partition effected between him and his brother- Hanmanthappa. The schedule properties are the joint family properties of the plaintiff and defendants. On the demise of Dhakappa, defendant No. 1-his son, has been managing the suit properties. Defendant No. 1 obtained the signature of the plaintiff on blank sheets of papers by saying that the documents were required to enter their names in the revenue records. Defendant No. 1 by misusing the said documents, got entered his name in the revenue records of the suit properties. Plaintiff came to know about this and then demanded her share in the suit properties, but defendant No. 1 did not allot any share. Hence, she filed the suit seeking relief of partition and separate possession.

5. In response to the suit summons and court notices, defendants appeared through their counsel and filed their written statement denying the plaint averments and contended that the plaintiff has no share in the joint family properties. It is contended that the suit is not maintainable in law or on facts. That the plaintiff and defendant No. 2 submitted then-consent letters in favour of defendant No. 1 and accordingly the revenue records were changed in the name of defendant No. 1 and since then, he has been enjoying the suit properties as the owner thereof. That plaintiff was born prior to the year 1956 and hence, he is not entitled to any share in the suit properties. Therefore, defendants sought for dismissal of the suit.

6. On the basis of the rival pleadings, the trial court framed the following issues for its consideration:

"(i) Whether the plaintiff proves that schedule properties are the joint family properties of the plaintiff and defendants?

(ii) Whether the plaintiff proves that she is having 1/3rd share in the schedule property?

(iii) Whether the plaintiff is entitled for the reliefs claimed in the suit?

(iv) What order or decree?"

7. In support of her case, plaintiff examined herself as PW-1. She produced three documents which are marked as Exs. P-1 to P-3. Defendant No. 1 examined himself as DW-1. He produced three documents which are marked as Exs. D-1 to D-3. On the basis of the evidence on record, the trial court answered issue No. 1 in the affirmative, issue Nos. 2 and 3 partly in the affirmative and decreed the suit in part and granted 1/6th share in the suit properties by metes and bounds to the plaintiff and directed for drawing up of a preliminary decree by judgment dated 21.09.2015. Being aggrieved by the judgment and decree of the trial court, defendant No. 1 has preferred this appeal.

8. Learned counsel for the appellant submitted that the delay of 696 days in filing the appeal is on account of bona fide and unintentional reasons. That the appellant was suffering from hypertension and severe osteoarthritis and was not able to move out of his house, which has lead to an inadvertent delay of 696 days in filing the appeal. The same may be condoned as the reasons assigned are sufficient in law for condonation of delay in filing the appeal.

9. He further contended that the appellant has a good case on merits. That although the suit schedule properties are ancestral properties, nevertheless, the plaintiff and defendant No. 2 had given their consent for defendant No. 1/appellant herein to enjoy the suit properties. That they have given up their right, title and interest as well as their share in the suit properties. That in support of the said contention, Ex. D-2/Kabuli patra (consent letter) and Ex. D-3 certified copy of Mutation Entry No. 2284 have been produced. It is pursuant to the plaintiff and defendant No. 2 giving up their right, title and interest in the suit schedule properties that defendant No. 1 got his name entered in the revenue records and he is the absolute owner in enjoyment of the suit properties. That the plaintiff could not have, thereafter, as an after-thought, filed the suit seeking relief of partition and separate possession of suit schedule properties. That the trial court has not appreciated the said aspect of the matter and has erroneously decreed the suit. That the appeal has merit and therefore, this Court may condone the delay of 696 days in filing the appeal after hearing the respondents and thereafter, hear the appeal in detail.

10. Having heard learned counsel for the appellant and on perusal of the material on record, we find that the reasons assigned for condonation of delay of 696 days is not acceptable to us. The delay is about one year and nine months. If indeed, the appellant had really suffered on account of the judgment and decree of the trial court, he would have taken steps to file the appeal in time. In fact, although respondent No. 1/plaintiff sought 1/3rd share in the suit schedule properties, the trial court has awarded only 1/6th share. We also do not find the reasons assigned to be real, true and bona fide so as to condone the same and to hear the appeal on merits. Hence, IA No. 1 of 2017 is dismissed.

11. Since, we have heard learned counsel for appellant on merits, we propose to consider the said submissions made on behalf of the appellant. Appellant's counsel submitted that having regard to Exs. D-2 and D-3, the plaintiff is not entitled to any share in the suit schedule properties. That Ex. D-2 is a consent letter executed by the plaintiff and defendant No. 2 while submitting the Varadi before the revenue authorities. That the said consent amounts to relinquishment of their right, title and interest in the suit schedule properties. It is on the basis of that, Mutation Entry No. 2284 was entered in the name of the appellant/defendant No. 1 only. Thereafter, the plaintiff has filed a suit which she is estopped from doing so. When the plaintiff and defendant No. 2 had executed Ex. D-2, it implies that they have relinquished their right, title and interest in the suit schedule properties and therefore, the suit of the plaintiff ought to have been dismissed as it was not at all maintainable.

12. We have considered the submissions of the learned counsel for the appellant in the light of the facts of the case. There is no dispute in the relationship between the parties. The plaintiff and defendant No. 2 are the sisters of defendant No. 1. They are the children of late Dhakappa and Smt. Sankamma. Late Dhakappa died long ago prior to the amendment being made to Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act' for the sake of brevity). In the circumstances, the principle of notional partition would apply for the purpose of dividing the properties between the legal representatives of Dhakappa. If the said principle applies, then there ought to be a notional partition of the suit schedule properties between Dhakappa and his son defendant No. 1. They would each get half share. In the half share of Dhakappa, his three children would get equal share i.e., 1/6th share. Therefore, the plaintiff's share is 1/6th in the suit schedule properties, which the trial court had allotted.

13. However, defendant No. 1/appellant herein intends to deny the said share of the plaintiff by placing reliance on Ex. D-2. Ex. D-2 cannot be considered in law to be a relinquishment of plaintiff's right, tide and interest in the suit schedule properties. The said consent letter may have been given for the purpose of entering the name of defendant No. 1 in the revenue records. The said consent letter would not amount to a relinquishment of the right, tide and interest of the plaintiff in the suit schedule properties. Even the said consent letter has not been believed by the trial court, nor Ex. D-2 could be equated to a deed of relinquishment. Any deed of relinquishment would require registration as per Section 17 of the Indian Registration Act, 1908. In the absence of there being any deed of relinquishment which has been registered in accordance with law, it cannot be held that the plaintiff has given up her right, title and interest in the suit schedule properties.

14. In the circumstances, we find that the trial court has applied its mind and granted only 1/6th share to the plaintiff although she had sought for 1/3rd share in the suit schedule properties. We do not find any infirmity in the judgment of the trial court. There is no merit in the appeal. The appeal is also dismissed on merits.

In view of the dismissal of the appeal, IA No. 2 of 2017 also stands dismissed.


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