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TMI Blog2016 (7) TMI 1645X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of this case and the conduct of the parties, Ex.D-22 appears to record the family settlement already arrived at between the parties. That Ex.D22-resolution was acted upon is also supported by the subsequent conduct of the parties. Plaintiffs No.3 and 4 retired from the army in 1988 and 1989 respectively - there was division of status among the brothers, the defendant and plaintiffs No. 3 and 4 during the year 1995 or at the time when the defendant paid Rs.20,000/- to plaintiffs No.3 and 4 for relinquishment of their interest in items No.1 and 2 or on 18.03.1995 when before panchayat resolution (Ex.D22) was passed. The judgment of the High Court of Karnataka dated 20.03.2008 in R.F.A. No.805 of 1998 is set aside so far as suit property items No.1 and 2 is concerned and respondents/plaintiffs suit for partition of items No.1 and 2 is dismissed - the impugned judgment is modified and it is held that all the four respondents/plaintiffs and appellant/defendant are entitled to 1/5 share each in item No.3. Appeal allowed in part. X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs No. 3 and 4 and defendant will have all rights over items No.1 and 2. So far as suit property in item No.3 is concerned, appellant-defendant claimed that he had encroached the said area of 1.25 acre in S.No.69/5C2 in the year 1962 and converted the same into wetland and applied to the Government to regularize his encroachment. After enquiry, the revenue authorities have granted patta to the defendant and hence item No.3 is the self-acquired property of the defendant and the plaintiffs have no right to claim any share. 5. On the above pleadings, trial court framed five issues. Plaintiffs No. 3 and 4 were examined as PWs 1 and 2 and two more witnesses were examined as PWs 3 and 4. Defendant examined himself as DW-1 and examined four other witnesses. During the course of trial, respondents No.1 and 2-plaintiffs No.1 and 2 were examined as CWs 1 and 2 and they have stated that they have no claim or right in items No.1 and 2. 6. Upon consideration of evidence, trial court held that sale deed (Ex.D13) dated 28.04.1976 is proved and the said sale is only by plaintiffs No. 1 and 2 and not by plaintiffs No. 3 and 4 and they cannot be said to have relinquished their right by v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d developed the same and the defendant cannot regard item No.3 as his self-acquired property. Onbehalf of the plaintiffs, it was urged that the courts below have recorded concurrent findings that plaintiffs No.3 and 4 are entitled to 1/3rd share in each of the suit scheduled property and the said concurrent findings cannot be interfered with. 10. We have carefully considered the rival contentions and perused the impugned judgment and material on record. 11. So far as the relationship between the parties is concerned, it is not in dispute that the defendant and the plaintiffs are sons of late Narayana. It is also available on record that Narayana had two daughters who are married and have not claimed any right with regard to the suit scheduled property. The mother of the plaintiffs died in the year 1987. Plaintiffs No.1 and 2 examined in the trial court as CWs 1 and 2 have stated that they do not claim share in the suit properties. Consequently, the dispute pertaining to partition of the suit scheduled property was limited to plaintiffs No.3 and 4 and the appellant-defendant. 12. So far as item No.1 in S.No.69/69 measuring 1.00 acre; item No.2 in S.No.69/70 measuring 0.25 acre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the panchayat resolution has been acted upon and that the defendant has paid a sum of Rs.15,000/- each to plaintiffs No.3 and 4. 13. To substantiate his plea that there was a panchayat in which plaintiffs No.3 and 4 have relinquished their rights in items No.1 and 2 of the suit properties, defendant has examined C.D. Annaiah (DW-2) who deposed that the plaintiffs No.3 and 4 have received money from the defendant in respect of items No.1 and 2. He further stated that as per the panchayat resolution Ex. D22, defendant had also paid a sum of Rs.15,000/- to each of the plaintiffs. DW-3-Belliyappa who is the brother-in-law of the plaintiffs and defendant i.e. husband of their sister by name Poovamma has stated about the panchayat and that money was paid by the defendant to plaintiffs No.3 and 4 and third plaintiff signed the receipt (Ex.D14) and Ex.D23 is the receipt pertaining to plaintiff No.4 and he has not signed in the receipt. 14. Defendant has also examined DW-4-C.B. Muthappa who is the Chairman of the Kanoor Village Panchayat had deposed that the panchayat was held between the parties regarding dispute in respect of the suit property items No.1 and 2. He had produced Ex.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore be produced and proved under Section 91 of the Evidence Act. 17. Even though recitals in the Ex.D22 is to the effect of relinquishment of right in items No.1 and 2, Ex.D22 could be taken as family arrangements/settlements. There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immovable property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evidence for showing or explaining the conduct of the parties. In the present case, Ex.D22 panchayat resolution reduced into writing, though not registered can be used as a piece of evidence explaining the settlement arrived at and the conduct of the parties in receiving the money from the defendant in lieu of relinquishing their interest in items No.1 and 2. 18. Plaintiffs have d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased 1.00 acre of land in Thithimathi village and that he had constructed a good house there. Third plaintiff has been working as a watchman in the State Bank of Mysore at Hunsur and his wife was working in the Family Welfare Department as a Warden and third plaintiff was residing separate with his wife and family. Third plaintiff had also admitted that he made an application to the Government for grant of agricultural land to him in his capacity as ex-serviceman. Likewise, fourth plaintiff had also purchased property in Kallubane and has constructed his own house in Kallubane and living separate. Wife of fourth plaintiff is working in Taluk Office and fourth plaintiff is living with his family members. 20. It is pertinent to note that even though the plaintiffs No.3 and 4 have retired from the army in 1988 and 1989 respectively and were living separate, they have not made any claim for partition. Their mother died in 1987. The defendant has made an application for grant of item No.3 in his name in or about 1991, the tehsildar has issued proceedings for regularization of item No.3 in the name of the defendant by his proceeding dated 08.12.1995. The defendant has paid the T.T. fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant on 19.06.1997, long after filing of the suit. DW-6-SDA in Taluk Office has produced the records pertaining to the grant of patta for item No.3 in favour of the defendant. Defendant has brought on record evidence that villagers have raised objections for grant of patta of item No.3 to the defendant and the defendant is said to have paid Rs.1000/- to the villagers. In this regard, defendant has examined DW-4-C.B.Muthappa who is working as a Chairman of the Seva Sahkara Sangha of Kanoor village who has produced Ex.D33-the resolution book which contains the resolution to the effect that the sum of Rs.1000/- was paid by the defendant as fine. The documents would show that Saguvali Chit (patta) for suit item No.3 was granted to the defendant on 19.06.1997 subsequent to the filing of the suit. 23. Case of the defendant is that since Saguvali Chit (patta) was granted to him, item No.3 is his self-acquired property. Rejecting the contention, courts below recorded the findings that the defendant had not established that the amount of T.T. fine paid by him was from his earnings and no evidence was adduced to show his source of income. Placing reliance upon Thimmegowda vs. Siddegowda IL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear before the trial court. They were summoned as court witnesses and examined as CWs 1 and 2. So far as the share of plaintiffs No.1 and 2 in item No.3, by perusal of evidence of CWs 1 and 2, it appears that they have relinquished their interest only in items No. 1 and 2. As the grant of patta for item No.3 has been held to be for the benefit of the family, plaintiffs No.1 and 2 are also held entitled for a share in item No.3 and thus the plaintiffs and defendant are entitled to 1/5th share each in item No.3. First plaintiff-PW-1 in his evidence stated that he is not interested in items No. 1 and 2. So far as item No.3, he has stated that since item No.3 of the suit scheduled property was in possession of their family during the life time of their father, he does not know what to ask. Second plaintiff (CW-2) in his evidence has stated that he is not interested in the share of the suit properties as the extent is very small. When specifically being asked about item No. 3, CW2 has stated that he is not interested in item No. 3 also. Though in their evidence, plaintiffs No.1 and 2 have stated that they are not interested in claiming share, they have not filed anything in writing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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