Karnataka High Court
Ahalya vs Ramananda Varamballi on 18 December, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1187 OF 2006 (PAR)
C/W
REGULAR FIRST APPEAL NO.1188 OF 2006 (SP)
REGULAR FIRST APPEAL CROB No.24 OF 2010
IN R.F.A No.1187 OF 2006
BETWEEN:
RAMANANDA VARAMBALLI
S/O LATE SHANKARNARAYANA VARAMBALLI
AGED 58 YEARS
R/O PADU GARADI MANE
VARAMBALLI VILLAGE
BRAHMAVARA POST
UDUPI TALUK AND DISTRICT-576 104
...APPELLANT
(BY SRI. K. SANATHKUMAR SHETTY, ADVOCATE)
AND:
1. AHALYA
AGED.59 YEARS
2. MEERA
AGED 55 YEARS
3. JAYASHREE
AGED 52 YEARS
ALL ARE DAUGHTERS OF
LATE SHANKARANARAYANA VARAMBALLI
HOUSEWIFES
R/O P.V. RAO'S COMPOUND
2
KOLAMBE, CHANTHAR VILLAGE
POST BRAHMAVARA
UDUPI TALUK AND DISTRICT-576 104
...RESPONDENTS
(BY SRI. R.V. JAYAPRAKASH, ADVOCATE FOR R1 TO R3)
THIS RFA FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.28.1.2006 PASSED IN O.S.NO.116/1983 ON
THE FILE OF THE PRL. CIVIL JUDGE (SR.DN), UDUPI, PARTLY
DECREEING THE SUIT FOR PARTITION.
IN RFA No. 1188 OF 2006
BETWEEN:
RAMANANDA VARAMBALLI
S/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 58 YEARS
R/O PADU GARADI MANE
VARAMBALLI VILLAGE
BRAHMAVARA POST
UDUPI TALUK AND DISTRICT
...APPELLANT
(BY SRI. K. SANATHKUMAR SHETTY, ADVOCATE)
AND:
1. AHALYA
AGED 59 YEARS
2. MEERA
AGED 55 YEARS
3. JAYASHREE
AGED 52 YEARS
4. MAHALAXMIAMMA
W/O LATE SHANKARANARAYANA VARAMBALLI
AGED 78 YEARS
RESIDENT OF NANCHAR VILLAGE
UDUPI TALUK AND DISTRICT
SINCE DECEASED BY LRs
RESPONDENTS NO.1 TO 3
(ALREADY ON RECORD)
3
RESPONDENTS NO.1 TO 3 ARE
DAUGHTERS OF
LATE SHANKARANARAYANA VARAMBALLI
HOUSEWIFES
R/O P.V. RAO'S COMPOUND
KOLAMBE, CHANTHAR VILLAGE
POST BRAHMAVARA
UDUPI TALUK AND DISTRICT
...RESPONDENTS
(BY SRI. R.V. JAYAPRAKASH, ADVOCATE FOR R1 TO R3;
R4 DEAD, R1 TO R3 ARE LRS OF DECEASED R4)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.28.01.2006 PASSED IN
O.S.NO.332/1986 ON THE FILE OF THE PRL.CIVIL JUDGE
(SR.DN.) UDUPI, DISMISSING THE SUIT FOR SPECIFIC
PERFORMANCE.
IN RFA.CROB No. 24 OF 2010
BETWEEN:
1. AHALYA
D/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 62 YEARS
HOUSE HOLD
R/O P.V. RAO'S COMPOUND AT
KOLAMBE, CHANTAR VILLAGE
BRAHMAVARA
UDUPI TALUK AND DISTRICT
PIN-576 104
2. MEERA
D/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 59 YEARS
HOUSE HOLD
R/O P.V. RAO'S COMPOUND AT
KOLAMBE, CHANTAR VILLAGE
BRAHMAVARA
UDUPI TALUK AND DISTRICT
PIN-576 104
3. JAYASHREE
D/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 55 YEARS
4
HOUSE HOLD
R/O P.V. RAO'S COMPOUND AT
KOLAMBE, CHANTAR VILLAGE
BRAHMAVARA
UDUPI TALUK AND DISTRICT
PIN-576 104
ALL THE CROSS OBJECTORS ARE
REPRESENTED BY THEIR GENERAL POWER
OF ATTORNEY HOLDER
SRI. B. SUBRAYA VARAMBALLI
S/O LATE NARASIMHA VARAMBALLI
R/O TRIPURA VIHAR, SALIKERI
VARAMBALLI VILLAGE
BRAHMAVAR POST
UDUPI TALUK & DISTRICT
PIN:576 101
...CROSS OBJECTORS
(BY SRI. R.V. JAYAPRAKASH, ADVOCATE)
AND:
RAMANANDA VARAMBALLI
S/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 60 YEARS
R/A PADUGARADI MANE
VARAMBALLI VILLAGE
BRAHMAVARA POST
UDUPI TALUK AND DISTRICT
PIN:576 104
...RESPONDENT
(BY SRI. K. SANATHKUMAR SHETTY, ADVOCATE)
THIS RFA.CROB IS FILED U/O-XLI, RULE-22, OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 28.06.2006
PASSED IN O.S.116/1983 ON THE FILE OF THE PRL. CIVIL
JUDGE, (SR. DN.), UDUPI, PARTLY DECREEING THE SUIT FOR
THE PARTITION AND SEPARATE POSSESSION.
THESE RFAs AND RFA.CROB HAVING BEEN RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS
DAY, RAMACHANDRA D. HUDDAR J., DELIVERED/
PRONOUNCED THE FOLLOWING:
5
CORAM: HON'BLE MR. JUSTICE S.G.PANDIT
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON’BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
The above captioned two Regular First Appeals i.e.,
Crob.24/2010 in RFA No.1187/2006 to decide the claim of
the plaintiffs and contention of defendant no.1 in OS
No.116/1983 and RFA No.1188/2006 to decide the claim
of the plaintiff and contentions of defendants in OS
No.332/1986.
2. Parties to these appeals are referred to as per
their rank before the trial Court in a main suit i.e., in OS
No.116/1983 for convenience.
3. Plaintiffs and defendant no.1 in the aforesaid
suit being aggrieved and dissatisfied with the common
judgment and decree dated 28th January 2006 passed by
the Prl.Civil Judge (Sr.Divn.), Udupi in OS No.116/1983,
332/1986 and 255/1988 are before this Court and so far
as judgment in OS No.255/1988 is concerned is not
challenged before this Court.
6
The brief and relevant facts as set out by the
plaintiffs in OS No.116/1983 are as follows:
4. It is evident from the pleadings of the parties in
all of the aforementioned suits that the genealogical tree
pertaining to the status of the parties to these appeals is
shown as below:
GENEOLOGICAL TREE
Shankaranarayana Varamballi
(Died on 30-09-1971)Laxmiamma Sumathi
@ Mahalaxmiamma (2nd Wife)
(1st wife) – (2nd Deft) [Died in 1953]Ahalya Meera Jayashree Ramananda
(Daughter) (Daughter) (Daughter) Varamballi
(Pltff No.1) (Pltff No.2) (Pltff No.3) (Son) – (Deft No.1)
5. The aforesaid OS No.116/1983 was filed by the
plaintiffs therein seeking partition and separate possession
of their alleged 7/12th share in the suit schedule property.
According to them, one Shankaranarayana Varamballi was
the propositus who died on 30.9.1971. He had two wives
by name Laxmiamma alias Mahalaxmiamma (the first
wife) arrayed as defendant no.2 in the suit (who died
7
during the pendency of the suit). The second wife
Sumathi, died in the year 1953. In the wedlock between
Shankaranarayana and Sumathi, four children are born
and they are plaintiff nos. 1 to 3 and defendant no.1 , as
stated in the cause-title of the plaint. This genealogical
tree is not disputed by both sides.
6. It is the specific case of the plaintiffs, that
deceased Shankaranayrayana Varamaballi acquired the
family properties in Dakshina Kannada District as per the
Final Decree proceedings passed in OS 161/1961 by the
Sub-Court of Mangaluru. He also acquired the landed
properties in Kerala as per the terms of the final decree in
a partition suit filed before the Sub-Court, Aleppi, in OS
No.154/1957. On the advent of the Karnataka Land
Reforms Act, the tenanted lands of the family in Dakshina
Kannada District stood vested in the State Government.
The family of the plaintiffs and defendant no.1 were
constrained to receive compensation from the State
Government. With regard to landed properties situated in
Kerala, the position was different. It is stated by the
plaintiffs that the family of Shankaranarayana continued to
8
enjoy their right to collect the rent arrears from the
tenants subject to conditions.
7. Plaintiffs had confidence in Defendant no.1
being their brother who used to take care. Plaintiff nos. 1
and 2 are married and plaintiff no.3 remained unmarried.
8. It is stated that, prior to 28.9.1974, these
plaintiffs empowered defendant no.1 as their power of
attorney to represent them and take care of their interest
with regard to properties situated in Kerala. Because of
that power of attorney, defendant no.1 appears to have
collected a huge amount by way of rent arrears. It is
alleged that, on 30.5.1983, by practicing fraud upon the
plaintiffs, the first defendant, by misrepresenting them,
brought up a ‘Karar’ stated to have been signed by the
plaintiffs and defendant no.1. The said document is an
unregistered document and is not admissible in evidence.
It is alleged that the said ‘Karar’ is not acted upon and
none of the clauses in the said ‘Karar’ were satisfied by
the defendant no.1. It is alleged that, in the said ‘Karar’,
this defendant no.1 got included the properties owned by
9
the maternal grandmother Laxmiamma, as well as the
properties standing in the name of defendant no.1. But
they were not parties to the said Karar. Even the first
defendant got allotted more portions for himself, like
“Garadi Mane.” The second defendant acquired 1/15th
share in the family properties upon the death of her
husband Shankaranarayana. Because of the conduct of the
defendant no.1, these plaintiffs issued notice to the
defendant no.1. on 5.9.1983 and called upon him to effect
partition and separate possession of the family properties
and allot them their legitimate share by metes and
bounds. Despite receipt of the said notice, defendant no.1
did not comply with the contents of the notice. Therefore,
the plaintiffs filed a suit seeking the relief of partition and
separate possession of their share in their family
properties.
9. In the suit, defendant no.1 appeared and
admits the relationship with the plaintiffs but, denies the
rest of the assertions made in the suit by filing written
statement. The first defendant asserts that, both himself
and his father (Shankaranarayana) acquired rights in the
10
properties in their individual capacities. First defendant
claims that, he is entitled for 6/10th share in the property,
not the 4/10th share as claimed by the plaintiffs. The
second defendant, according to the defense, is entitled to
maintenance from the properties listed in Execution Case
No. 121/1970. The first defendant contends that, the
parties involved (including the plaintiffs) had agreed to
settle the dispute through settlement, in the presence of
two senior advocates, B.Y. Holla and H.S. Kedlaya, on 30th
May 1983 (as per the agreement marked as Ex.D1). He
claims that, this settlement was binding on plaintiffs. He
further asserts that, Laxmiamma acknowledged receiving
of consideration related to the settlement, as evidenced by
the accounts provided to her. The settlement provided for
the registration of the partition deed after some specified
period. The first defendant emphasizes that, the plaintiffs
were aware of the settlement and had participated in the
agreement (Ex.D1). Since the plaintiffs were parties to
this agreement, it is contended they cannot now seek a
fresh partition, as it would be in violation of the terms of
the Ex.D1. The first defendant highlights that he spent
11
sufficient money on the marriages of plaintiff nos. 1 and 2
and their maintenance until their marriage.
10. It is further contended that, the second
defendant died leaving behind a registered Will dated
3.2.1992 which was duly executed by her in a sound state
of mind in favour of first defendant bequeathing all her
undivided interest in the joint family properties. Therefore,
plaintiffs are not entitled for any share as claimed. He
prayed to dismiss the suit.
11. In OS No. 332/1986, the first defendant in the
main suit is seeking specific performance of an agreement
for partition (referred to as Ex.D1 or the “Karar”) entered
into between himself and the plaintiffs on 30th May 1983.
The first defendant reiterates that, both he and the
plaintiffs are children of Shankaranarayana Varamballi
(who had a second wife by name Sumathi). The first
defendant claims that, the properties possessed by
Shankaranarayana Varamballi were acquired by him
through a final decree in OS No. 161/1961 (a previous
suit), which was passed in the Sub-Court, Mangalore and
12
the Sub-Court, Aleppi. According to the first defendant,
Shankaranarayana’s share in the properties has been
inherited by the second defendant and himself, while the
plaintiffs have no right to claim their right in the same.
The first defendant asserts that, he has spent a substantial
amount of money on the maintenance of the plaintiffs as
well as the marriage expenses of plaintiff nos. 1 and 2.
The first defendant emphasizes that, the agreement dated
30th May 1983 (Ex.D1), which is described as an
agreement of partition, should be enforced. The primary
relief sought in this suit is decree for the specific
performance of this agreement Ex.D1. It is contended
that, since the plaintiffs are parties to the agreement
Ex.D1, he seeks a legal declaration to ensure that the
partition takes place as per the agreed terms.
12. In response to the suit summons, defendants 1
to 3 (i.e., plaintiffs in OS No. 116/1983) appeared and
filed their written statement contending that, the partition
agreement was fraudulently obtained. They never agreed
to its terms and conditions. The defense of defendant in
this suit rests on claims of fraud, misrepresentation, and
13
non-compliance of the terms of agreement. They further
contend that, the plaintiff is not entitled to the relief
sought and requested to dismissed the suit.
13. Based upon the rival pleadings of both the
parties, the learned trial Court framed issues in OS
No.116/1983 and 332/1986 as under:
(i) Whether the first defendant proves that the
properties in Kerala and Dakshina Kannada
Districts were acquired by him and
Shankaranarayana Varamballi in equal shares
on their own individual right?
(ii) Whether the first defendant proves that the
deceased had incurred huge debts and they
are to be met out from his shares of the
properties?
(iii) Whether suit is bad for partial partition?
(iv) Whether plaintiffs prove that “B” and “C”
schedule properties are available for division?
(v) What is the correct annual income from plaint
“A” schedule properties?
(vi) Whether first defendant proves that the
plaintiffs are liable to account for, as
contended in para 7 of the written statement?
14
(vii) Whether plaintiffs prove that Karar is brought
about by fraud or misrepresentation?
(viii) Whether valuation made for the purpose of
Court fee and jurisdiction is proper?
(ix) To what shares, the plaintiffs are entitled to?
(x) Whether plaintiffs are entitled for the suit
claim?
(xi) Whether first defendant is entitled for
compensatory costs under Sec.35-A CPC?
(xii) What order or decrees?
Addl. Issue:
(i) Whether the 1st defendant proves that
deceased 2nd defendant has executed a
registered will dated 3.2.1992 in his favour?
14. All the aforesaid suits were consolidated
together, common evidence is recorded, common
arguments were heard and common judgment was
passed.
15. To substantiate the case of the plaintiffs, their
power of attorney by name B.Subraya Varamballi entered
the witness box as PW.1 and got marked Ex.P1 to P22 and
closed plaintiffs evidence. To rebut the evidence of
15
plaintiffs, defendant no.1 entered the witness box as DW.1
and also examined three witnesses by name B.Y.Holla,
Narayana Poojary and Dayananda Nayaka as DW2 to 4
and got marked Ex.D1 to D4 and closed defendant’s
evidence.
16. The learned trial Court on hearing the
arguments of both sides and on evaluation and
assessment of evidence, passed the impugned judgment
and decree. The operative portion of the order reads as
under:
“O.S.No.116/1986 is decreed in part.
Plaintiff Nos.1 and 2 are each entitled for
1/15th shares, plaintiff No.3 and defendant No.1 are
entitled for 6/15 and 7/15 share respectively in the
plaint ‘A’ and ‘C’ schedule properties.
Their claim is regard to ‘B’ schedule
properties is dismissed.
Draw a preliminary decree in O.S. No.116/83
accordingly.
O.S. No.332/1986 is dismissed.
O.S. No.255/1988 is decreed as prayed for.”
16
17. The common decision rendered in the
aforementioned suits is currently contested by the
appellants and cross-objectors before this Court. The trial
Court records are secured.
Submission of counsel for appellant-defendant No.1
18. The learned counsel for the appellant-defendant
No.1 strongly argues that while the relationship between
the parties and the status of the properties are
acknowledged, the parties are bound by the terms of
agreement dated 30.5.1983, which is evidenced by Ex.D1.
This agreement, according to the counsel, was signed by
all the plaintiffs and defendant No. 1, and as such, the
only appropriate course of action for the parties is to get
executed a registered partition deed based on the terms of
this agreement. The counsel further contends that the
plaintiffs, being aware of the contents of Ex.D1, cannot
now deny its validity or terms. He would further assert
that, PW1, who is the power of attorney holder, is the
primary instigator behind filing the suit for partition and is,
in fact, ignorant about the actual facts of the case. In his
view, since the plaintiffs have refrained from testifying
17
PW1’s testimony, holds no legal value and should not be
considered. Additionally, the counsel highlights the
testimony of DW1 i.e., the defendant-appellant, who
explicitly stated that the plaintiffs and defendant No. 1 had
a clear understanding of Ex.D1. This agreement was
signed in the presence of the plaintiffs’ senior and
reputable advocates from Udupi, thus reinforcing its
legitimacy. The counsel argues that since the dispute
concerning the partition was already settled under Ex.D1,
the plaintiffs cannot now seek a new partition. Therefore,
the terms of Ex.D1 should be enforced. Finally, the
counsel would submit that, there was a delay in executing
the partition as per Ex.D1, which led defendant No. 1 to
file a suit for specific performance (OS No. 332 of 1986) in
the Court of the Principal Senior Civil Judge, Udupi.
Despite this, the trial court dismissed the suit in OS No.
332/1986 and ruled in favor of OS No. 116/1983, which
the appellant-defendant No. 1 contends was erroneous, as
the trial court failed to appreciate the evidence from the
attesting witnesses to Ex.D1 and the testimony of DW1.
18
19. In support of his submission, the learned
counsel for appellant/defendant no.1 took us through
evidence of PW.1 and DWs 1 to 4 at length and also the
documents relied upon by both the parties. He relied upon
the following judgments:
(i) Rudrawwa v. Balawwa & Another – 1967(1)
MLJ
(ii) Bishundeo Narain and Another v. Seogeni
Rai and Other – 1951 SCC 447 – 1951 SCC
Online SC 34
(iii) Ram Charan Das v. Girja Nandini Devi and
Others, 1965 SCC OnLine SC 17
(iv) Maturi Pullaiah Alias Naga Pullaiah and
Another v. Maturi Narasimham and Others
1966 SCC OnLine SC 91
(v) S. Shanmugam Pillai and Others v. K.
Shanmugam Pillai and Others, (1973) 2 SCC
312
(vi) M.N. Aryamurthy and Another v. M.D.
Subbaraya Setty (Dead) through LR and
Others, (1972) 4 SCC 1
(vii) M. Gnanasambandam (since deceased), S/o.
Late A. Muthiah and 3 others. [Applicants 2 to
4 brought on record as L.Rs: of the deceased
first applicant as per order dated 8.8.2007 in
Appln. No. 5539 of 2007] v.
M. Raja Appar, S/o. Late A. Muthiah, No. 1
(Old No. 16), Singra Street, T. Nagar,
Chennai-600017 and 4 others – 2009 SCC
OnLine Mad 465
19
(viii) Sodhi Transport Co. and Others v. State of
U.P., and Others – (1986) 2 SCC 486
(ix) Bihar State Electricity Board, Patna and
Others v. M/s. Green Rubber Industries and
Others – (1990) 1 SCC 731
(x) Iswar Bhai C. Patel Alias Bachu Bhai Patel v.
Harihar Behera and Another – (1999) 3 SCC
457
(xi) Sarwan Singh v. State of Punjab – (2003) 1
SCC 240
Submission of counsel for respondents-plaintiffs:
20. The learned counsel for the respondents-
plaintiffs, Sri R.V. Jayaprakash, counters the submissions
made by the appellant-defendant No. 1 and refutes all the
assertions raised in his favor. According to plaintiffs’
counsel, defendant No. 1, being the brother of the
plaintiffs, was in a fiduciary relationship with them. The
plaintiffs had placed their trust and confidence in
defendant No. 1. The counsel argues that, defendant No. 1
took advantage of this trust by committing fraud upon the
plaintiffs, created Ex.D1 the agreement in question.
Furthermore, the counsel highlights that, the terms of
Ex.D1 were not even adhered to by defendant No. 1,
undermining its validity. The counsel asserts that, the
20
plaintiffs are not required to specifically plead and prove
fraud, as the fiduciary relationship between the parties
itself raises a presumption of undue influence and fraud.
He relies on Section 111 of the Indian Evidence Act, 1872,
which relates to presumptions in cases involving fiduciary
relationship. He would submit that, this provision supports
the argument that the plaintiffs’ claim of fraud is valid due
to the nature of their relationship with defendant No. 1.
Additionally, the counsel argues that, the plaintiffs, being
the daughters of Shankaranarayana, are entitled to equal
share in the joint family properties as per the provisions of
the Hindu Succession Act particularly in the light of the
amendment to Section 6 of the Act in 2005. The
amendment recognizes the daughters as coparceners with
equal rights in the ancestral property and the counsel
submits that this entitles the plaintiffs to a share in the
suit properties by metes and bounds. He points out that,
despite the pending suit, the plaintiffs’ rights to an equal
share cannot be denied based on the change in law.
Regarding the so-called agreement (Ex.D1), the counsel
rejects its enforceability. He argues that defendant No. 1’s
21
suit for specific performance in OS No.332/1986 is an
afterthought and cannot be upheld. Therefore, he supports
the findings of the trial court in decreeing the plaintiffs’
suit and dismissing the suit filed by defendant No. 1. In
essence, the counsel for the plaintiffs maintains that the
plaintiffs are entitled to their rightful share in the property,
based on the amended Hindu Succession Act, and that the
alleged agreement (Ex.D1) should not be enforced due to
the fraudulent manner in which it was created.
21. We have given our anxious consideration to the
arguments of both sides and perused the material placed
on record.
22. In view of the rival submissions of both sides,
the points that would arise for our consideration are:
i) Whether the learned trial Court is
justified in ignoring Ex.D1 ‘Karar’ and
granting preliminary decree in favour of
plaintiffs by passing impugned judgment
and decree?
ii) Whether defendant no.1 being the
plaintiff in OS No.332/1986 is right in
claiming enforcement of agreement
Ex.D1 dated 30.5.1983 as claimed by
him?
22
iii) Whether the judgment and decree of
the trial Court require interference by this
Court?
iv) What order?
Point Nos. 1 and 2 are discussed together:
23. The core issue in these appeals revolves around
whether the learned trial Court was justified in
disregarding Ex.D1 “Karar” (agreement) and granting a
preliminary decree in favor of the plaintiffs. To address
this, it is necessary to first examine certain facts that are
agreed upon by both parties in the litigation.
24. It is an undisputed fact that the plaintiffs filed a
suit (OS No. 116 of 1983) in the Court of the Principal
Senior Civil Judge, Udupi, seeking partition and separate
possession of the suit schedule properties. Meanwhile,
defendant No. 1 filed a separate suit (OS No. 332 of 1986)
against the plaintiffs and others, seeking the enforcement
of the agreement marked as Ex.D1 which was a suit for
specific performance of the contract. As per the facts
presented by the plaintiffs in their plaint, it is admitted
that, Shankaranarayana Varamballi acquired certain
23
properties in Dakshina Kannada District through a decree
passed by the Civil Sub-Court in Mangaluru. Additionally,
Shankaranarayana also acquired properties in the Kerala
State under the provisions of the Kerala Land Reform Act,
through decrees passed by the Sub – Court in Aleppi.
These facts are not in dispute between the parties. The
controversy, therefore centres on whether the trial court
erred in ignoring the agreement (Ex.D1) that defendant
No.1 seeks to enforce and whether it was correct to
proceed with granting a preliminary decree for partition in
favor of the plaintiffs. The next step would be to delve into
the legal implications of Ex.D1, the relationship between
the parties, and the relevance of the amendments to the
Hindu Succession Act as argued by both sides.
25. The plaintiffs have made specific allegations
against defendant No.1, claiming that he, the elder
brother, was entrusted with the responsibility of collecting
rents from the properties situated in Kerala which were
part of the family estate. According to the plaintiffs,
defendant No.1 misused this responsibility and
misappropriated a significant amount of rent, which had
24
accumulated as arrears. It is further alleged that, prior to
28.9.1974, the plaintiffs had given defendant No. 1 power
of attorney to act on their behalf with respect to these
Kerala properties. However, the plaintiffs contend that on
30.5.1983, defendant No. 1 took advantage of their trust
by fraudulently misrepresenting facts and made them to
sign an agreement (Ex.D1), which was a document that
the plaintiffs now claim as fabricated or obtained under
false pretences. This document is an unregistered
agreement, and its validity is disputed as it has not been
executed or acted upon in the manner stated. Additionally,
the plaintiffs argue that Ex.D1 is flawed because it
wrongfully includes the property of their grandmother
Laxmiamma, which they claim should not have been part
of the agreement. The plaintiffs also point out that
defendant No. 1, despite having only a 1/15th share in the
family property, took possession of more than his
entitlement including the properties of the second
defendant (the mother), who had passed away. Before
filing their suit for partition, the plaintiffs issued a notice
on 5.9.1983, requesting defendant No. 1 to effect partition
25
and provide separate possession of the family properties.
Despite receiving this notice, defendant No. 1 did not take
any action to divide the property or fulfil their request.
whereas, Defendant No. 1, in his defence, justifies the
agreement (Ex.D1) as a resolution of the family dispute,
which was supposedly agreed upon in the presence of two
senior reputed advocates. He argues that the plaintiffs,
along with defendant No. 2 (during her lifetime), had
agreed to the terms made out in Ex.D1. According to
defendant No. 1, since this dispute over the family
property was already resolved by the agreement, the
plaintiffs are not entitled to seek a fresh partition.
26. The plaintiffs contend that it was obtained
through fraud, while the defendant argues it was a fair
agreement, and thus, they claim that the matter is already
settled. The trial court’s decision to grant a preliminary
decree for partition suggests that, it did not accept
defendant No. 1’s justification regarding Ex.D1 or the
claim that the dispute was already resolved through the
agreement. The plaintiffs’ insistence on their rights to the
property under the amended Hindu Succession Act and
26
their claims of fraudulent conduct by defendant No. 1,
form the basis for their claim for partition and separate
possession.
27. In this case, plaintiffs presented their evidence
through P. Subraya Varamballi, who entered the witness
box as their power of attorney holder. His testimony
aligned with the contents of the plaint and supported the
plaintiffs’ case. He categorically stated that, the so-called
agreement (Ex.D1) had not been implemented or properly
acted upon, and that no partition of the family properties
had taken place. According to him, there was no partition
at all in the family properties, which contradicts the
defendant No. 1’s claim that a settlement was reached
through Ex.D1. Subraya Varamballi, in his deposition,
relied on a series of documents, marked as Ex.P1 to
Ex.P17, to substantiate his evidence. These documents
were introduced to support the plaintiffs’ claims and to
challenge the validity of Ex.D1. Despite being thoroughly
cross-examined by defendant No. 1’s counsel who
conducted a detailed and exhaustive cross-examination
Subraya Varamballi remained consistent in his testimony.
27
He emphasized that the plaintiffs never agreed to the
contents of Ex.D1 and had not signed it voluntarily or
knowingly. Furthermore, in the cross-examination, it was
revealed that until 1990, Subraya Varamballi acted as the
power of attorney for the plaintiffs managing their legal
and property matters. After that period, the plaintiffs
themselves pursued their respective suits. This
information could serve to highlight that, even if Subraya
Varamballi was acting on their behalf at some point, it was
only with the plaintiffs’ consent and his actions were in line
with their interests.
28. While the defendant no.1 relies heavily on
Ex.D1 as the basis for enforcing the agreement, the
plaintiffs have countered this by presenting a consistent
narrative through PW1’s testimony and supporting
documents. The absence of objections to the documents
presented by the plaintiffs further strengthens their case
demonstrating that the properties in question are located
in two States which must be considered in the partition
proceedings.
28
29. The plaintiffs rely on a notice they issued to
Defendant No.1 on September 5, 1983, which is marked
as Ex.P18. This notice called upon Defendant No.1 to
initiate partition of the family properties and allot the
respective shares. The notice was duly served on
Defendant No.1, as evidenced by the postal
acknowledgment marked Ex.P19. The receipt of this notice
by Defendant No.1 is not disputed. Additionally, Defendant
No.2 (Laxmiamma, now deceased) also issued a notice to
Defendant No.1, marked as Ex.P22. The contents of this
notice are similarly not denied by Defendant No.1.
30. Defendant No.1 provided oral evidence by
entering the witness box as DW.1. He admitted his
relationships with the plaintiffs, himself, and Defendant
No.2. He acknowledged that Plaintiff Nos. 1 and 2 are
married while Plaintiff No.3 is unmarried. According to
DW.1, he spent substantial amount on the marriages of
Plaintiff Nos.1 and 2. DW1 also admitted about collecting
rent from the family’s landed properties and receiving
compensation for properties vested in the Government,
which were subsequently granted to respective tenants
29
under the Kerala Land Reforms Act. This indicates that
DW.1 acted in a fiduciary capacity concerning the
plaintiffs, handling substantial sums from rent and
compensation related to the tenanted properties. On oath,
DW.1 expressed his willingness to abide by the terms of
Ex.D1 which he claims to be a valid agreement. However,
the plaintiffs dispute Ex.D1 alleging that it was never
acted upon and that they did not agree to its terms. The
plaintiffs assert that Defendant No.1 procured their
signatures on Ex.D1 styled as a “Karar” or agreement,
through fraud and misrepresentation.
31. The case primarily hinges on the interpretation
of Ex.D1. A detailed examination of Ex.D1 reveals that
certain properties were allotted to the plaintiffs while most
of the properties were retained by Defendant No.1. Since
the plaintiffs dispute the validity of Ex.D1, it cannot be
assumed that they have accepted it. Consequently, the
burden of proving the contents and validity of Ex.D1 lies
on Defendant No.1. Defendant No.1 examined DW2, P.
Yogeshwara Holla, a Senior Advocate who claims to have
been present when Ex.D1 was executed. DW.2 testified
30
that another advocate, H.S. Kedlaya, was also present
during the preparation of Ex.D.1. He identified other
documents, including Ex.D3, and confirmed his signature
on Ex.D1, stating that he signed it at in advocate’s office
in Udupi. However, under cross-examination, DW.2 admits
that, he does not know who instructed for the preparation
of Ex.D1, the basis for drafting it, or its intended purpose.
He stated that he signed Ex.D.1 simply because the scribe
asked him to sign. This testimony weakens Defendant
No.1’s defence as DW2, despite being a witness to Ex.D1,
demonstrated ignorance about its contents and the
reasons for its execution. As such, DW2’s evidence does
not help to establish Ex.D1 as a valid and binding
document in support of Defendant No.1’s case.
32. DW.3 Narayana Poojari was examined by
Defendant No.1 regarding the injunction obtained by the
plaintiffs against Defendant No.1. He deposed that, the
plaintiffs had filed a suit against Defendant No.1 and that
an appeal is currently pending before the Appellate Court.
DW.3 also acknowledged that there is ongoing litigation
between himself and PW1, one of the plaintiffs. This raises
31
the possibility that DW3’s testimony against the plaintiffs
may have been influenced by his personal disputes with
PW1, a factor that cannot be entirely ruled out.
33. DW.4 Dayananda Nayak was examined as a
witness to Ex.D4, a document presented by Defendant
No.1 to demonstrate that Mahalaxmiamma, during her
lifetime, executed a Will bequeathing her properties to
Defendant No.1. However, documents Ex.P20 and Ex.P22
reveal that Mahalaxmiamma had issued notices to
Defendant No.1 questioning his actions. These notices
indicate the lack of trust in Defendant No.1 making it
highly improbable that she would have executed a Will in
his favor. Therefore, the testimonies of DW.2 to DW.4 fail
to substantiate the defense of Defendant No.1 in any
meaningful way. This concludes the review of the factual
aspects presented by both sides.
34. To interpret Ex.D1, reference must be made to
the provisions of the Indian Evidence Act to evaluate its
genuineness, validity, and whether it grants Defendant
No.1 the right to enforce it. Defendant No.1 has admitted
32
that Ex.D1 is an agreement, and the schedule properties
mentioned therein include family properties located in both
Karnataka and Kerala. Counsel for Defendant No.1 argues
that the main relief sought in the suit for specific
performance hinges on the existence of the agreement
with its specific terms and conditions ensuring that it does
not violate Section 29 of the Indian Contract Act, 1870
(which addresses agreements void for uncertainty). A
close reading of Ex.D1 reveals that it includes obligations
to be performed by Defendant No.1. Notably, Condition
Nos. 9, 10, 11, and 12 impose specific responsibilities on
Defendant No.1 including the payment of money and
compliance with the terms and conditions of agreement.
These conditions highlight the obligations Defendant No.1
was required to fulfil under Ex.D1. For better appreciation,
these conditions are incorporated as under:
“9. ºÉÆgÀV¤AzÀ §gÀvÀPÀÌ ºÀtUÀ¼À£ÀÄß ªÀ¸ÀÆ®Ä ªÀiÁqÀ®Ä AiÀiÁ ¸À®èvÀPÀÌ
ºÀtUÀ¼À£ÀÄß ¸À°è¸À®Ä 1£Éà AiÀĪÀ£Éà ¸ÀA¥ÀÆtð dªÁ¨ÁÝgÀ£ÁVgÀĪÀÅzÀjAzÀ D ¨Á§ÄÛ
2jAzÀ 4£ÉÃAiÀĪÀgÀÄ AiÀiÁªÀ ªÁådåzÀ°èAiÀiÁzÀgÀÆ ¸ÉÃgÀ¨ÉÃPÁzÀ ¸ÀAzÀ¨sÀðzÀ°è CªÀgÀÄ
1£ÉÃAiÀĪÀ£À eÉÆvÉ ¸ÉÃgÀvÀPÀÌzÀÄÝ AiÀiÁ CzÀPÉÌ vÀPÀÄÌzÁzÀ ºÀPÀÄÌ ¥ÀvÀæªÀ£ÀÄß §gÀPÉÆqÀvÀPÀÌzÀÄÝ.
CzÀjAzÁV 1£ÉÃAiÀĪÀ¤UÉ AiÀiÁªÉÇAzÀÆ vÉÆAzÀgÉAiÀiÁUÀPÀÆqÀzÀÄ ºÁUÀÆ 2jAzÀ
4£ÉÃAiÀĪÀjUÉ AiÀiÁªÉÇAzÀÆ dªÁ¨ÁÝj ©Ã¼ÀPÀÆqÀzÀÄ.
10. ªÁgÀA§½î UÁæªÀÄzÀ ¸À,£ÀA§æ 141-8 £ÀAd 0.48 ¸ÉAmïì£À°è ªÀPÀÌ°UÉ ºÉÆÃzÀ
0-45 ¸ÉAlÄì ºÉÆÃUÁÛ «ÄPÀÄ̽zÀ 0-03 ¸ÉAlÄì ¸ÀÛ¼ÀzÀ°è MAzÀÄ PÀ®Äè PÀnÖzÀ PÉgÉ EzÀÄÝ ¸À¢æ
¸ÀÛ¼ÀªÀ£ÀÄß 2jAzÀ 4£ÉÃAiÀĪÀgÀ © ±ÉqÀÆå°UÉ ¸ÉÃj¹AiÀÄzÉ. ¸À¢æ PÉgÉAiÀÄ §UÉÎ gÀÆ. 3,000
33PÀæAiÀÄ PÀnÖzÀÄzÀjAzÀ D ¨Á§ÄÛ 2jAzÀ 4£ÉÃAiÀĪÀgÀÄ 1£ÉÃAiÀĪÀ¤UÉ gÀÆ.1,850
vÉgÀvÀPÀÌzÁÝVgÀÄvÀÛzÉ.
11. CzÉà jÃw ªÁgÀA§½î UÁæªÀÄzÀ ¸À,£ÀA§æ 145-1 ¥ÀÄAd ¥ÉÊQ 0-30 ¸ÉAlÄì ºÁr
¸ÀÛ¼ÀªÀ£ÀÄß £ÀªÀÄä ¥ÉÊQ 1£ÉÃAiÀĪÀ£À J ±ÉqÀÆå°UÉ «AUÀr¹AiÀÄzÉ. ¸À¢æ ¸ÀÛ¼ÀzÀ ¨Á§ÄÛ gÀÆ.
3,000 PÀæAiÀÄ PÀnÖzÀÄzÀjAzÀ D ¨Á§ÄÛ 1£ÉÃAiÀĪÀ£ÀÄ 2jAzÀ 4£ÉÃAiÀĪÀjUÉ 1,125
vÉgÀvÀPÀÌzÀÄÝ.
12. F PÀgÁgÀÄ FUÀ £ÀªÉÄä®ègÀ ¨ÁQ EgÀĪÀ ªÁådåUÀ¼À°è FUÀ EgÀĪÀ ¸ÁzsÀ£ÉUÀ½UÉ
AiÀiÁ E£ÀÄß ªÀÄÄAzÉ 1£ÉÃAiÀĪÀ£ÀÄ ªÀiÁqÀĪÀ ¸ÁzsÀ£ÉUÀ½UÉ ¨sÁzÀPÀªÁUÀ PÀÆqÀzÀÄ. CzÉà jÃw
E£ÀÄß ªÀÄÄAzÉ £ÀªÀÄä ªÉÄÃGÉ ªÀiÁqÀ§ºÀÄzÁzÀ AiÀiÁ ªÀiÁqÀĪÀ AiÀiÁªÀ ªÁådåUÀ½UÀÆ
1£ÉÃAiÀĪÀ£ÀÄ AiÀÄÄPÀÛ PÀAqÀ jÃwAiÀÄ°è ªÀiÁqÀĪÀ ¸ÁzsÀ£ÉUÀ½UÉ ¨sÁzÀPÀªÁUÀPÀÆqÀzÀÄ. AiÀiÁ D
jÃw ¨sÁzÀPÀªÁUÀĪÀAvÉ 2jAzÀ 4£ÉÃAiÀĪÀgÀÄ ªÀwð¸ÀPÉÆqÀzÀÄ.”
35. Defendant No.1 has not demonstrated
compliance with the conditions stipulated in Ex.D1. Under
the provisions of Section 29 of the Indian Contract Act,
1870, the enforceability of a contract hinges on fulfilling
any preconditions outlined in the agreement. This raises
the question whether Defendant No.1 can seek relief for
specific performance of the contract without first
complying with these pre-conditions. The foundation of
Defendant No.1’s case is the alleged agreement (Ex.D1)
entered into on May 3, 1983, between the parties.
According to Defendant No.1, the plaintiffs agreed to the
terms and conditions of Ex.D1. However, the pleadings
and the evidence presented by PW.1 do not specify any
clear timeline or deadlines by which Defendant No.1 was
required to fulfill these conditions. Ex.D1 mentions some
34
time-bound stipulations, but Defendant No.1 has not
complied with them. Therefore, without adhering to these
terms, Defendant No.1 cannot claim the right to specific
performance of the contract. On the other hand, the
plaintiffs deny the existence of any such agreement as
described in Ex.D1. Their position is that Defendant No.1,
as their elder brother was entrusted with managing family
properties and their welfare. He held a power of attorney,
overseeing properties located in Kerala collecting rents
from tenants, and receiving compensation under the
Kerala Land Reforms Act for lands granted to tenants.
During cross-examination, PW1 consistently asserted that
the plaintiffs never consented to the terms or contents of
Ex.D1. This further supports their claim that the
agreement was neither valid nor mutually accepted.
36. It is true that DW.2 was examined as an
attesting witness to the alleged agreement (Ex.D1).
However, as previously noted, DW.2 expressed complete
ignorance about the basis for the execution of Ex.D1. He
testified that the agreement was prepared at the direction
of a scribe and he signed it accordingly. This indicates that
35
the agreement was not entered into with the informed
consent of all parties. Furthermore, the agreement has not
been acted upon. The plaintiffs issued a notice to
Defendant No.1 requesting partition of the family
properties. This act clearly demonstrates their non-
acceptance of the terms of Ex.D1 and supports their claim
that it is a fraudulent document. Notably, Defendant No.1
has not denied receiving this notice. In light of these facts,
the provisions of the Indian Contract Act must be applied
while interpreting Ex.D1, particularly to assess its
genuineness and enforceability. To interpret the validity of
Ex.D1, we may draw guidance from Lord Halsbury’s
statement in Laws of England (Vol. 20, Section 1745),
which provides clarity on the legal consequences of
contracts induced by misrepresentation, whether
fraudulent or innocent. It states:
“Where the representee has been induced by
misrepresentation, whether fraudulent or
innocent, to enter into a contract or transaction
with a representor which, unless and until
rescinded, would be binding on the parties,
such a contract or transaction is voidable at the
option of the representee. This means that the
representee, on discovery of the truth, has a
right to elect whether he will affirm or disaffirm
the contract or transaction, and if he adopts the
36latter course, is entitled to give notice to the
representor of repudiation and demand from
him a complete restoration of the status quo. In
the event of his demand not being complied
with, he may, subject to certain conditions and
affirmative defenses, maintain an action or
analogous proceedings for the purpose of
having the contract or transaction declared void
and rescinded by the Court, in which event it is
deemed to have been void ab initio.”
37. Applying this principle to Ex.D1, if the plaintiffs
were induced into the agreement by fraud or
misrepresentation, they have the legal right to repudiate it
upon discovering the truth. The issuance of a notice to
Defendant No.1 requesting partition suggests such
repudiation. If proven, this would render Ex.D1 void ab
initio, and the Court may declare it as such to restore the
original position of the parties.
38. As Indian law is influenced by common law,
many principles laid down in English cases have been
adopted by the Privy Council and Indian courts, becoming
binding precedents. While it is not always necessary to
refer directly to English law, the principles articulated in
Halsbury’s Laws of England and other English decisions
can be appropriately applied to the facts of this case. The
37
principle of Restitutio ad integrum, which seeks to restore
both parties to their original position, is relevant here. For
the representees (plaintiffs) to obtain complete restitution,
they must reciprocate by making necessary repayments,
retransfers, or reconveyances. However, in this case,
Defendant No.1 has failed to fulfil the terms and conditions
stipulated in Ex.D1 including obligations such as monetary
payments to the plaintiffs and Defendant No.2. Since
Defendant No.1 has not complied with these obligations,
the instrument styled as a “Karar” (Ex.D1) holds no legal
validity. Additionally, the plaintiffs have specifically alleged
that Defendant No.1 practiced fraud in obtaining their
agreement to Ex.D1, further undermining its legitimacy.
Thus, Ex.D1, without compliance and in light of allegations
of fraud, cannot be recognized as a valid and enforceable
document under the law.
39. The learned author in Bigelow on Fraud (pages
75 to 79) provides a comprehensive analysis of the types
of rescission available under the law. According to
Bigelow, there are three main classes of cases in which
rescission can be achieved, each with its own mode of
38
execution: rescission in Pais, judicial rescission, and
rescission by plea (or answer). Bigelow explains that
rescission in Pais (extrajudicial rescission) is rarely
effective on its own. On the other hand, rescission by plea
or answer can be fully effective in certain cases. Judicial
rescission, the most formal type, can be divided into two
subcategories: one acts as a substitute for rescission in
Pais, while the other is employed when acts of repudiation
in Pais are insufficient to rescind the contract or restore
the original status quo. Judicial rescission, as described by
Bigelow, is particularly significant in cases involving fraud.
It serves as the remedy for fraud in real estate transfers,
according to general common law, and may also apply to
fraud in specialty contracts or other agreements where
tender and demand are inadequate or impractical. This
remedy is also relevant in situations where no tangible
exchange has occurred, preventing a typical tender from
taking place, yet where an allegation of fraud might not
provide sufficient relief without judicial intervention.
40. In the present case, the plaintiffs alleged that
Defendant No.1 created the agreement Ex.D1 through
39
fraudulent means, rendering the contract voidable under
the Indian Contract Act, 1870. The plaintiffs have
exercised their right to unilaterally repudiate the contract
by issuing a notice and filing a suit, thus asserting their
right to rescind the agreement due to its fraudulent
nature. Before analysing, we have to read the provisions
of Indian Contract act as under:
“Section 2(1) of the Indian Contract Act,
1870 defines a voidable contract as: “An
agreement which is enforceable by law at the
option of one or more of the parties thereto,
but not at the option of others, is a voidable
contract.” This provision indicates that if a
contract is tainted by fraud, the affected party
has the option to either enforce or void the
contract. It is their choice, which must be
exercised within the framework of the law.
Section 10 states: “All agreements are
contracts if they are made by the free consent
of parties competent to contract, for a lawful
consideration and with a lawful object, and are
not hereby expressly declared to be void.” This
section establishes that for an agreement to be
valid, it must be entered into freely by
competent parties with lawful consideration and
purpose. The presence of fraud undermines the
principle of free consent, making the agreement
voidable.
Section 14 elaborates that: “Consent is
said to be free when it is not caused by
coercion and undue influence, fraud,
misrepresentation, or mistake.” This reinforces
40that if consent is obtained through fraud, the
agreement cannot be considered freely made
and is, therefore, not valid as a binding
contract unless affirmed by the aggrieved
party.
Section 19A states: “When the consent to
an agreement is caused by coercion, undue
influence, fraud, or misrepresentation, the
agreement is voidable at the option of the party
whose consent was so obtained. Any such
contract may be set aside either absolutely, or
if the party who was entitled to avoid it has
received any benefit there under, upon such
terms and conditions as the court may deem
just.” This section specifically outlines that a
contract obtained through fraudulent means is
voidable at the option of the party whose
consent was induced by fraud. The aggrieved
party has the right to either avoid the contract
entirely or seek a remedy that adjusts for any
benefit they may have received.
41. As the plaintiffs have alleged fraud, Ex.D1 is a
voidable contract as per Section 2(1). Their contention
that they never agreed to the terms of Ex.D1 align with
Sections 10 and 14 which assert that an agreement
without free consent due to fraud is not enforceable.
Section 19A further supports the plaintiffs position,
establishing that they have the right to repudiate the
agreement. The plaintiffs unilateral action in issuing a
notice and filing a suit is consistent with their right to
avoid the contract, asserting that they never consented to
41
it due to fraudulent misrepresentation. The intention
behind Sections 19 and 19A is to protect parties from
contracts formed under undue influence or fraud, giving
them the power to nullify the agreement and restore the
status quo. The plaintiffs’ case demonstrates that Ex.D1 is
voidable due to the alleged fraud. The contract cannot be
enforced as the plaintiffs have not consented freely due to
the fraudulent actions of Defendant No.1. The relevant
provisions of the Indian Contract Act, when applied to the
facts at hand, clearly indicate that the plaintiffs are
entitled to seek rescission of Ex.D1 and can have it
declared void if their allegations are proven.
42. To address the issue at hand, we need to
analyze the facts in conjunction with the relevant legal
provisions to determine whether Defendant No.1 can claim
specific performance of Ex.D1, and whether the plaintiffs
are entitled to their share in the suit properties. Section
92 of the Indian Evidence Act, 1872 is significant when
examining the admissibility of oral evidence in relation to
written agreements. It generally excludes oral evidence to
vary, add, or contradict the terms of a written document.
42
However, Proviso 3 to Section 92 allows oral evidence to
be admissible to prove the existence of a separate oral
agreement that forms a condition precedent for the
obligations under the written document. This implies that
if Defendant No.1 wishes to rely on Ex.D1, it must be
proved that the document was duly executed, valid, and
not tainted by fraud or any other infirmity. The burden of
proof lies with Defendant No.1 to establish the validity of
Ex.D1. This includes proving that the document was
executed in accordance with the law and that the
conditions stipulated in it were met. The fact that Ex.D1 is
not a registered document raises questions about its
enforceability and its status as a valid contract, especially
when it is disputed by the plaintiffs.
43. The plaintiffs, acting in good faith and as
parties who trusted Defendant No.1 are not required to
plead or prove fraud or misrepresentation as a defence if
they can demonstrate their genuine belief in the legitimacy
of the agreement. In support of this, the Hon’ble Supreme
Court has addressed the scope of Section 111 of the
Indian Evidence Act, which deals with the presumption of
43
good faith. It has been held that, “if a party acts in good
faith, there is no need to prove fraud or misrepresentation
unless the other party produces substantial evidence to
challenge the integrity of their actions.” Defendant No.1 is
the appellant and is attempting to claim specific
performance of Ex.D1, it is incumbent upon them to
provide cogent evidence of the document’s execution and
validity. If Ex.D1 is not proved to have been executed
properly, the question would be whether it is
authenticated and enforceable as a valid document.
Without proving Ex.D1, Defendant No.1 cannot claim
specific performance of the agreement or seek
enforcement of any rights arising from it. If Defendant
No.1 fails to establish the validity of Ex.D1, the plaintiffs’
right to their share in the suit properties remains intact.
The plaintiffs’ claim for a partition or distribution of the
property does not depend on the validity of Ex.D1. In the
absence of proof of any binding agreement, the plaintiffs
are entitled to assert their rights over the properties as co-
owners or beneficiaries, based on their familial relationship
and any other evidence demonstrating their claim. The
44
plaintiffs’ entitlement to share in the suit properties would
stand if Defendant No.1 fails to substantiate the validity of
Ex.D1. Defendant No.1 has not proved the due execution
of the agreement and he cannot claim relief based on it.
As such, the plaintiffs’ request for a partition or share in
the properties is valid and should be upheld, provided
other factors such as their ownership claims, are
established.
44. In light of the facts and legal framework
provided, it is evident that the plaintiffs, along with
Defendant No.1, are all members of a Mitakshara
coparcenary under the Hindu law, and that their rights to
ancestral property are governed by the relevant provisions
of the Hindu Succession Act, 1956, particularly as
amended by the Hindu Succession (Amendment) Act,
2005.
45. The Hindu Succession (Amendment) Act, 2005
marked a significant change in the laws concerning the
rights of daughters in Mitakshara coparcenary property:
45
Section 6(1) of the Act now states that,
from the commencement of the amendment,
daughters are treated as coparceners by birth
in the same way as sons. This means they have
the same rights, liabilities, and status in the
coparcenary property.
Daughters have equal rights to inherit,
partition, and claim their share in the ancestral
property, thereby rectifying the previous
gender-based disparity in Mitakshara law.
Section 6(3) further clarifies that when a
Hindu dies post-amendment, the property is
not devolved by survivorship but by
testamentary or intestate succession. This has
the effect of treating the coparcenary property
as partitioned, with daughters receiving a share
equal to that of a son.
46. As per the genealogical tree, it is clear that,
Shankarnarayana was the propositus and the plaintiffs,
No.1, No.2, No.3, along with Defendant No.1, are his
children. Since Defendant No.2 is the second wife, the
plaintiffs and Defendant No.1 were born from that union.
Under the Hindu Succession (Amendment) Act, 2005, the
plaintiffs, being daughters, have an equal status as
46
Defendant No.1 (the son) in the Mitakshara coparcenary.
The rights to the ancestral property, therefore, extend
equally to the daughters as that of a son.
47. The amendment aims to provide gender parity
in the distribution of coparcenary property:
Daughters as Class-I heirs: The Hindu
Succession Act, 1956, as amended, places
daughters in the same category as sons in
Class-I heirs. This means that upon the death
of a coparcener, the share of the property is to
be distributed equally among all Class-I heirs,
including the daughters.
Property held as coparcenary ownership:
Any property a daughter acquires under Section
6(1) is held as coparcenary property, capable of
being disposed of by her through testamentary
means.
48. The amendment specifies that a partition
occurring after the commencement of the Hindu
Succession (Amendment) Act, 2005, should be treated as
if a partition has already occurred. The share allotted to
each coparcener, including daughters, is determined based
47
on what they would have received if a partition had
occurred immediately prior to the death of the coparcener.
Section 6(5) states that nothing in this section affects
partitions made before December 20, 2004, implying that
any pre-amendment partitions remain valid and binding.
49. In the present case the plaintiffs, being
daughters of Shankarnarayana, are entitled to a share in
the coparcenary property along with Defendant No.1, their
brother, as per the amended Section 6 of the Hindu
Succession Act, 1956. The admission of the genealogical
tree confirms their status as co-owners and class-I heirs.
Since the amendment to the Act has retrospective
application, any claim made by the plaintiffs for partition
and inheritance of the property would be supported by the
legal provisions ensuring equal rights for daughters in
Mitakshara coparcenary property. Thus, in the context of
this case, the plaintiffs are entitled to their rightful share
of the ancestral property, and any claim to the contrary by
Defendant No.1 would need to overcome the clear legal
framework established by the amendment to the Hindu
Succession Act. As per Vineeta Sharma v. Rakesh
48
Sharma, reported in (2020) 9 SCC 1 it is observed as
under:
“60. The amended provisions of Section
6(1) provide that on and from the
commencement of the Amendment Act, the
daughter is conferred the right. Section 6(1)(a)
makes daughter by birth a coparcener “in her
own right” and “in the same manner as the
son”. Section 6(1)(a) contains the concept of
the unobstructed heritage of Mitakshara
coparcenary, which is by virtue of birth. Section
6(1)(b) confers the same rights in the
coparcenary property “as she would have had if
she had been a son”. The conferral of right is
by birth, and the rights are given in the same
manner with incidents of coparcenary as that of
a son and she is treated as a coparcener in the
same manner with the same rights as if she
had been a son at the time of birth. Though the
rights can be claimed, w.e.f. 9-9-2005, the
provisions are of retroactive application; they
confer benefits based on the antecedent event,
and the Mitakshara coparcenary law shall be
deemed to include a reference to a daughter as
a coparcener”.
50. In light of the provisions of Section 6 of the
Hindu Succession Act, 2005 as well as the facts presented
in this case, the conclusion that the plaintiffs, being
daughters, are entitled to an equal share in the ancestral
property. The relevant section of the Act and its
interpretation support the claim of the plaintiffs for an
equal share with the male coparceners, including
49
Defendant No.1. The proviso to Section 6 affirms that,
when daughters become coparceners, they are entitled to
an equal share in the property with that of their male
counterparts. The law has corrected the discriminatory
aspect of the old Mitakshara system by acknowledging the
rights of daughters to inherit and share in the coparcenary
property equally. The plaintiffs, Nos. 1, 2, and 3, being
daughters of Shankarnarayana, are entitled to a share
equal to that of Defendant No.1, who is the son. Thus,
each plaintiff should be allocated 1/4th of the total share in
the suit properties. The assertion by Defendant No.1 that
there was a partition does not hold weight as Ex.D1 (the
alleged agreement) has not been acted upon or proven as
valid. The burden of proof lies with the defendant no. 1 to
establish the partition and its legitimacy, which, in this
case, appears to be inadequately demonstrated.
51. Though the learned counsel for defendant no.1
relied upon number of citations with due respect to the
principles laid down in the said judgment, they cannot be
justifiably made applicable to the given facts and
circumstances of this case.
50
52. The trial Court awarded 1/15th share to
plaintiffs no.1 and 2, 6/15th share to plaintiff no.3 and
7/15th to defendant No.1 respectively. This division is
inconsistent with the principles laid down in the Hindu
Succession (Amendment) Act, 2005. The trial court’s
decree appears to be flawed because it does not align with
the legislative intent of the amendment which guarantees
equal shares to sons and daughters as coparceners in a
Mitakshara family. The Defendant No.1 failed to prove the
validity of Ex.D1 or a partition that would exclude the
plaintiffs’ rights. The judgment and decree of the trial
Court which awarded unequal shares require modification.
The plaintiffs are entitled to receive 1/4th share each and
Defendant No.1 shall also be entitled to receive 1/4th
share as per the provisions of Section 6 of the Hindu
Succession Act, 2005. Thus, the appeals filed by
Defendant No.1 in RFA No.1187/2006 and RFA
No.1188/2006 are liable to be dismissed and Cross-
objection filed by plaintiffs is to be allowed. The trial
Court’s judgment is to be modified to ensure that the
shares in the suit properties are distributed equally among
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plaintiffs no.1, 2, 3 and Defendant No.1 with each
receiving 1/4th share. This decision reinforces the
entitlement of daughters as coparceners under the
amended Hindu law.
53. Resultantly, we pass the following:
ORDER
(i) Appeals of appellant/defendant No.1 in
RFA No.1187/2006 and RFA
No.1188/2006 are dismissed.
(ii) RFA CROB No.24/2010 filed by plaintiffs is
allowed to the extent of modification of
allotment of shares and the judgment
and decree passed by the Principal Civil
Judge (Sr.Dn.), Udupi in OS No.116/1983
is hereby confirmed in all other respect.
However, there shall be modification in
the allotment of shares in favour of
plaintiffs and defendant No.1 i.e., plaintiffs
no. 1 to 3 each are held entitled to one
fourth (1/4th) share in the suit properties
and defendant No.1 is also held entitled to
his one fourth (1/4th) share in the suit
properties by metes and bounds.
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(iii) There shall be modified preliminary decree
in the above terms.
(iv) Looking to the relationship between the
parties and also their status, parties are
directed to bear their own cost.
(v) Send back the trial Court records along
with copy of this judgment forthwith.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
Sk/-