Written Arguments in Partition Suit on Behalf of Purchaser

8/12/2019 Written Arguments in Partition Suit on Behalf of Purchaser

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IN THE COURT OF 3RDADDITIONAL DISTRICT AND

SESSIONS JUDGE AT TUMKUR

RA 315/2007

APPELLANT VS RESPONDENT

N.ARUNA & Anr GANGAMMA & ORS

WRITTEN ARGUMENTS FILED ON BEHALF OF APPELLANT:-

SYNOPSIS:- The following brief points of arguments are raised in

this arguments with clear facts, law and applicable citations.

1. As on the date of filing of suit (07-01-1998) plaintiff wasadmittedly a married women having married before 30-07-

1994, as such she is not a co-parcener to seek partition from

ancestral property or challenge alienations made by her

father. (Smt. Nanjamma And Another vs State Of Karnataka

And Others (DB) ILR 1999 KAR 1094, 1999 (2) KarLJ 109)

2. Hindu Succession (Amendment) Act, 2005 came into forceon September 9, 2005. For the first time on 09-09-2005

plaintiff became co-parcener by birth. But such right was

subjected to the condition that all alienations made before

20-12-2004 cannot be challenged by women co-parcener.

(Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr.

AIR 2012 SC 1692011 (9) SCC 788,)

3. As on the date of sale of properties (sold by D-1 to D-6 andD-6 to D-7) in 13-12-1996, & 20-09-1997, plaintiff is

neither a co-parcener nor having any successor rights due to

her father a sole co-parcener is alive on the date of that sale.

Instant suit is filed when seller was alive.


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4. Whatever may be the family arrangement legally plaintiff hasno rights to challenge alienations made by her father in

whatever capacity as on the date of suit or subsequent upto

the date of 09-09-2005.

5. Estoppel:- When plaintiff by her declaration, act or omissioncaused or permitted another person to believe a thing to be

true and to act upon that belief, (admittedly when Form 21

statutory notice is being signed by plaintiff during EX D34

and EX D28) neither she nor her representative shall be

allowed in any suit or proceeding between herself and such

person or his representative to deny the truth of that thing.

6. Presumption under section 133 of Karnataka land revenueact and probability of factual interpretations regarding EX

D34,(Mutation after palupatti), EX D19 (Appeal of plaintiff dismissed

by AC court regarding challenge as to legality in making entry in RTC

regarding sale to D-6)& EX D28 (Tahsildar orders accepting mutation

in the name of purchaser that id D-6)is not rebutted by plaintiff in

order to succeed in her case.

7. In a suit where government is a party section 80 CPCcompliance is mandatory, as such suit should have been

dismissed in its entirety at initial stage itself.

8. Party who alleges fraud and fabrication has to prove itstrictly. Plaintiff in lower court alleging fraud and fabrication

against statutory presumptions failed in her endeavour to

prove her case.

9.The EX D20 marked as evidence for collateral purpose ofSeverance of joint status with specific order by the court

cannot be overturned or overlooked in final stages. Also EX

D20(b) signature marked without any objections cannot be

overlooked in final stages.

10. Court has Improperly framed issues.


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11. Documentary presumption cannot be thrown out bymere statement of pleadings.

12. When court has marked the document for collateralpurpose, with a specific order, it has to take into such

purpose along with other documents at EX D34 and D18,

which clearly elicits that palupatti was acted upon by the

parties.

13. If anyone withholds a vital document in order to gainadvantage against the other side, then he would be guilty of

playing fraud on the court (S.P. Chengalvaraya Naidu vs.

Jagannath, reported in 1994 (1) SCC 1).

14.

False representation even without bad motive is fraud.(Ram Chandra Singh vs. Savitri Devi and others, reported in

(2003) 8 SCC 319)

15. Nobody should be permitted to indulge in immoral actslike perjury, prevarication and motivated falsehoods

(Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421)

16. Post litigation document does not have any value(STATE OF BIHAR Vs. RADHA KRISHNA SINGH & ORS. AIR

1983 SC 684).

17. No party should be permitted to travel beyond itspleading and that all necessary and material facts should be

pleaded by the party in support of the case set up by it

(Kalyan Singh Chouhan vs C.P.Joshi 2011 AIR 1127 =

2011 (2 ) SCR 216)

18. All "material facts" must be pleaded by the party insupport of the case set up by him (Mahadeorao Sukaji

Shivankar Vs. Ramaratan Bapu & Ors (2004) 7 SCC 181)


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19. Judicial process should never become an instrumentof oppression or abuse or a means in the process of the court

to subvert justice (Noorduddin v. Dr. K. L. Anand, 1995 (1)

SCC 242)

20. Partition effected cannot be re-opened unless it isshown it is obtained by fraud coercion misrepresentation

and undue influence (Ratnam Chettiar & Ors vs S. M.

Kuppuswami Chettiar & Ors 1976 AIR, 1 1976 SCR (1) 863)

21. Partition deed which was mutually acted upon cannotbe questioned for its non-registration (Amteshwar Anand v.

Virender Mohan Singh & Ors; (2006) 1 SCC 148)

22. Initial burden of proving existence of joint familyproperty is on plaintiff (D.S. Lakshmaiah & Anr. Vs L.

Balasubramanyam & Anr. Reported in AIR 2003 SC 3800).

23. Coparcenary is a creature of hindu law and cannot becreated by agreement of parties except in the case of reunion

(Bhagwan Dayal vs Mst. Reoti Devi 1962 AIR 287, 1962 SCR

(3) 440)

24. Once a disruption of joint family status takes place,coparceners cease to hold the property as joint tenants but

they hold as tenants-in-common (Kalyani v.

Narayanan, reported in AIR 1980 SC 1173)

BRIEF PLAINT PLEADINGS IN LOWER COURT:-

1. Suit schedule properties are ancestral and joint familyproperties of plaintiff and defendant 1 to 5.

2. Defendant 1 is the manager and karta of joint family.


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3. Allegations against 1st defendant mismanagement of jointfamily property to the detriment interest of plaintiff.

4. Allegations of creation of document against defendant 6 and7.

5.The family properties fetching sufficient income alleged.There is no contracted by joint family alleged.

6.There is no legal necessity to sell suit schedule propertiesalleged.

7. By virtue of Karnataka amendment act no. 23/94 1/6thshare claimed by plaintiff.

8.The suit schedule properties are not yet divided betweenplaintiff and defendant 1 to 5 alleged.

9. Knowledge about previous suit in OS no. 4/1997 and itssubsequent withdrawal by payment of money by 1st

defendant alleged.

10. Government is arraigned as party and injunction reliefis claimed against them.

11. Plaintiff wants to stop conversion of suit scheduleproperties from agricultural purpose to non-agricultural

purpose.

EVIDENCE LED IN FAVOUR OF PLEADINGS OF PLAINTIFF:-

1. Plaintiff examined herself as sole witness in favour of herpleadings.

2. Admits her marriage date as November 1990, in two placesone in 02-06-2005 cross examination page 2 and 31-05-

2007 cross examination page 10.

3. Although plaintiff took contention that defendants havecreated some documents, plaintiff never produced and

showed before the court which documents were fraudulently

executed and which documents are not binding.


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4.The plaintiff was much aware about the proceedings of form21 in EX D 18 & 34 and subsequent notice regarding change

of katha and subsequent objections of her sister before

Tahsildar and consequent appeal filed by her before

Assistant commissioner. No document was placed by

plaintiff and there is suppression of important material fact.

This is due to guilty mind of plaintiff having signed form 21

and kept silent and later raised new pleas.

5. Plaintiff has not produced important documents of suitschedule properties, which came into existence before filing

of suit, like EX D18, EX D19, EX D 25, EX D26, EX D28, EX

D34.

6.There is no specific pleading or proof about whichdocuments are sought to be not binding on plaintiff share.

BRIEF GROUNDS OF CHALLENGE IN THE APPEAL MEMO:-

1. Lower court erred in considering sole evidence of plaintiff incoming to conclusion that Ex. P 20 palupatti is a fabricated

document.

2. Lower court made Improper appreciation of facts.3. Lower court does not considered the conduct of parties before

and after filing of suit and possible collusion to defraud honest

purchaser.

4. Lower court failed to consider the fact of allotment and divisionvide palupatti.

5. Lower Court does not considered the facts that on the basis ofpalupatti katha changed.

6. Lower Court does not considered the fact that plaintiffapproached court after 7 years of change of katha and palupatti.

7. Lower court failed to appreciate the fact thattransferee/appellant has been misled by parties of suit

including plaintiff.

8. There is no proper appreciation of evidence of defendant 1to5.9. Judgement is against the law.


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10.Judgment is against the facts.11.Judgment is against the probabilities of the case.12.Lower court failed to consider the share specification in the

palupatti.

13.Lower court failed to consider the purpose of sale considerationreceived in the sale deed.

14.Lower court failed to consider the third party rights.15.Lower court failed to consider severance of status of joint family.

FURTHER GROUNDS URGED IN THIS ARGUMENTS BY WAY OF

EXPLANATION TO THE GROUND --- JUDGEMENT IS AGAINST

LAW, FACTS AND PROBABILITIES OF THE CASE:-

1.The lower court judgement dated 30-08-2007, beforeconsidering women as a co-parcener of joint family property

failed to consider the statutory bar in questioning sales done

before 20-12-2004. The Central Act of 2005 also mentions in

proviso to Section 6(1) that nothing contained in the

subsection 6(1) shall affect or invalidate any disposition or

alienation or including any partition or testamentary or

disposition of property which have taken place before 20 day

of December 2004. Hence partially the sale deeds executed

before 20-12-2004 are hit by the above law. The sale done in

13-12-1996 is legally cannot be questioned by women co-

parcener.

2.The lower court failed to consider the probable fact that ason the date of filing of suit plaintiff is neither the co-parcener

as per 1990 karnataka amendment. The lower court failed to

consider the Rights of lone co-parcener/ karta (Defendant-1

in lower court) to sell his properties.

3. Lower court relied on single stray sentence in the documentEX P35, without looking into the whole portion and also

interpreted EX D20 document in an improbable way. The EX

P35 and pleadings and deposition of all the parties

themselves show that plaintiff and all other defendants have


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accepted payment of consideration to the family and there is

only in-built dispute as to the sharing of properties.

4. Lower court failed to consider the relevancy of palupattidated 10-12-1992, which is a deed executed between the

members of a family for family settlement although some of

the women including plaintiff are not co-parceners as on

that date.

5. Lower court failed to consider the fact that alleged palupattiis acted upon vide EX D18 & EX D34, In that exhibits it is

specifically reported by village accountant that all named

persons including plaintiff has given statement and signed

Form-21 and after publishing it in village chavadi katha was

changed as per rules. The said Mutations is not challenged

by plaintiff. The only mutations un-successfully challenged

by plaintiff is the vendors mutations in MR 17/96-97 (aselicited in EX D19). Hence the fact of acted upon palupatti is

not challenged before any authorities by plaintiff. The only

intention of challenging purchasers Mutations and land

conversions vide EX D19 & EX P31 shows that plaintiff has

ulterior motive in denying the signature of her in EX D 20.

6. Lower court failed to appreciate the relevancy andpresumption of entries in revenue records and the burden of

proof to bring facts contrary to such entries. When acted

upon Mutation in EX D34 is not challenged by the plaintiff

and the facts stated therein remained un-disturbed, the

relevancy of such facts and documents to be presumed to be

correct by the lower court.

7. Lower court failed to appreciate the mischief played byparties and their subsequent conduct which amounts to

estoppel. Estoppel is a rule of evidence and the general rule

is enacted in Section 115 of the Indian Evidence Act, 1872

(in short 'Evidence Act') which lays down that when one

person has by his declaration, act or omission caused or


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permitted another person to believe a thing to be true and to

act upon that belief, neither he nor his representative shall

be allowed in any suit or proceeding between himself and

such person or his representative to deny the truth of that

thing. Here in the instant case plaintiff has represented to

authorities by receiving notice for change of katha in her

name and accepted mutation in her favour and suppresses

that document clandestinely and still this day she is

representing to the world that what is stated in MR 47/95-

96 as quoted in EX D 19 & 34 which is one and same are

legally done.

HOW LOWER COURT ERRED IN ANALYSING THE PLEADINGS

AND FACTS IN A PROPER MANNER:-

1.The joinder of Government as a 8THAND 9THDefendant partyto the suit and third relief claimed in the suit to stop

conversion of land shows, the intention of the suit is to

attack the sale deed executed by 1st defendant (of lower

court) in favour of 6th defendant. The non-compliance of

section 80 CPC is overlooked by lower court.

2.The conversion of land increases the value of land, as on thedate of filing of suit the tact full pleading of plaintiff if any

documents are created shows plaintiff has not come with

full facts and clean hands to show her rights.

3.The lower court has not verified properly the revenue recordthat is mutation extract MR 47/95-96 (EX D18 & EX D34),


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wherein the record speaks of Jg M P Pngvg,

U sgA 21 P Qgvg. This is the record having

presumptive value under section 133 of Karnataka land

revenue act. Even objections and appeal is not filed against

such record. The only record challenged by plaintiff is the

purchasers Mutation order in MR 17/96-97 and its

presumptive value is upheld by orders as shown in EX D28

& EX D19. Anything contrary to such records shall be

established by person who pleads fraud, forgery, fabrication

etc.

4.The burden of establishing fraud and forgery lies on plaintiffto prove strictly in accordance with law. The plaintiff is in

possession and knowledge of how she is making her

signatures from her adolescence. No record from her school

records or employment records produced to show that she is

not signing in kannada. Admittedly from depositions she is a

graduate, she had SSLC marks card which contains her

signature. She is a government servant her signature before

joining service and during graduation are well within her

reach. The best pieces of evidence with plaintiff only. Plaintiff

cannot be allowed to suppress her own documents and

throw out such presumption of records by mere denial &

statement in pleadings.

5.The fraud and fabrication is alleged by plaintiff and she hasto prove it with strict facts and documents. The silence of

plaintiff in taking any action against such alleged forgery

itself shows plaintiff is acting at her whims and fancies just

to harass bonafide purchasers. Not even challenged

mutations done on alleged Palupatti as shown in EX D18 &

EX D34. She cannot throw away one document and accept

another which are of same related transaction.

6. Lower court should not have suspected from whose custodysuch original Palupatti produced. When it is not registered it

should have verified only aspect that whether it is acted


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upon by parties or not. To that aspect lower court has made

a specific order in page 3 and 4 of cross of DW1 dated 24-11-

2005. Cz AiiV Ujw gAz Qg

vg. PgtAzg zj zR jfq zR C, Pr

iz A g gAiVz v Az iqVz

PlAz Uz U irPAq zP DVg DzjAz D

zRAi AiiV Ugw gAz vg. .. .. .. ..

.. GsAi Qg z Pv, zRAi jv.

v zRAi 7 w F QU vj, D zR U

iqvg. Q D zR Mvg. Cz Cz sU v P 17

jf DP Pg AztAiiUPAz j. Dzg, P

sU vU PlAz zg vPVg U vj

GR PAq Az D zRAi Pmg gUV

AiiV UgwzVgvz. QAi n F zR

MPArg Pgt Qg vPgg gj z.

DzjAz Cg PjPAi wgj zRAi AiiV Ugw

Cw qVz. zj zPAi r-20 JAz UwVz.

When court has marked the document for collateral purpose,

with a specific order, it has to take into such purpose along

with other documents at EX D34 and D18, which clearly

elicits that palupatti was acted upon by the parties. As per

deposition of defendant witness they accept that original EX

D20 is with D1 and there is much probability that such

record in original to have handed over from D1 to D6.

7.There is an allegation in the plaint that 1st defendant isattempting to alienate suit schedule properties. Even in the

plaint of OS 4/1997, has stated clearly there is a sale in

favour of 6th defendant. Plaintiff has suppressed such sale

and filed suit in the above case alleging only fraud and

forgery. So plaintiff herself know the facts of palupatti and

sale deed allege it as a forged and fraud has to prove it how

it is forged and how it amounted to fraud. The presumption


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of registered document that is sale deed cannot be

overlooked by mere statement of allegations.

8.The plaintiff overall can allege un-equal distribution of jointfamily asset and has to seek setting aside of acted upon

palupatti, if she is co-parcener and has any rights in the

family, which has not been done by them. The matter which

is settled with legal procedure has to be specifically asked to

be set aside by following suitable procedure under law.

Without asking such relief with specific pleading and proving

the fraud and forgery within the family members, plaintiff is

not entitled to victimise the outsider of the family.

9.The statutory authority endorses on an official record EXD18 & D34, stating all have signed form 21, the relevancy of

such endorsement or such documents is not challenged any

where, hence no relief can be given to plaintiff on mereallegations.

10. Plaintiff has kept her silence why she absented in thesuit OS 4/1997, the relevancy of such conduct imputes

different probability when compared to the allegations in the

pleadings of plaintiff.

11. Plaintiff wants to utilise her rights to seek partition/equal partition after turning back towards the deed created

by their own family members including herself. There is no

single paper of signature produced by plaintiff to prove that

even before filing of suit she was in the habit of signing in

English, she is the best custodian of such records, as she is

working with government, she may have produced any such

available old records. Mere making of statement for creating

litigation cannot be believed by the court to come to such

vague conclusion.

12. If the relief is given to plaintiff without recognising therights of purchasers 6th and 7th defendants, there will be


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grave abuse of process of court, no value for any official

records, encourage every dis-honest litigant to change his

stand to suit his convenience.

13. At-least court should have recognised the rights ofkartha of joint family to sell, if it had come to the conclusion

of existence of joint family and at least court could have

verified the facts from all party pleadings and evidence that

there is no evidence as to illegalities and vices of alleged

kartha, it should have allotted the sold land to the share of

1st defendant (alleged Kartha), when there is admitted

consideration and its payment and when there is admitted

legal necessity, by all the parties.

14. Lower court failed to draw proper issues in the suit.When there is a pleading of being acted upon palupatti by

even other defendants, it should have imposed burden onplaintiff to prove. Proper issues are as follows:-

1). Whether plaintiff proves that she is co-parcener as per

1990 amendment act.?

2). Whether Plaintiff proves that she is entitled to challenge

the co-parcenary property alienations made in 13-12-1996?

3). Whether plaintiff proves that suit schedule properties are

still joint family properties?

4). Whether plaintiff proves that kartha of family has abused

his power and acting detrimental to the affairs of the family?

5). Whether plaintiff proves that defendants 1 to 6 have

created any forged or fraudulent deeds against her interests?

6). Whether plaintiff rebutes the presumption of section 133

in reference to revenue records?

7). Whether defendant 1 to 5 proves that there is

panchayathi palupatti dated 10-12-1992 and severance of

joint status from that day?

8). Whether defendant 6 proves that they brought the land

for valuable consideration and there is legal necessity?


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9). Whether the plaintiff proves that she is still entitled to re-

open the acted upon partition on the principles of equity?

10). Whether the plaintiff entitled for any relief?

11). To what decree or order?

15. The lower court should not have relied on themisleading interpretations and submissions of Learned

Counsel of plaintiff regarding striking of BG initial in the

palupatti, - in all probability no fraud creator will do such

mistake. That shows some fraudulent intention on the part

of person who signed it. No where in plaintiff arguments the

relevancy of mutation in EX D18 & D34 is raised by the

counsel. This shows deliberate silence as to acted upon

nature of palupatti.

16.

The reliance of only one single statement of EX P35without reading its full content is not good gesture shown by

lower court. There is no document or evidence to show that

statement is actually made by defendant-1. The other

statements like involvement of plaintiff and defendants to

sell the land to this appellants vendor is not taken into

consideration. Which prima facie shows that for monetary

gain parties have been using their own representations to

the world in one side and backtracking from it on other side.

17. Court should not have trusted EX P35 which iscreated after litigation started in the above case to come to

conclusion that EX D20 is a concocted and fabricated

document. The relevancy of EX D 18 & D 34 under the law

cannot be overthrown by EX P 35 that to after raising

litigations herein. The real intention of parties in raising

such documents of post litigation, by suppressing

documents of past litigation shows primary motive of

monetary gain and unclean hands of plaintiff and later

colluded defendants 1 to 5.


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18. The allegation of concocted and fabricated has to beproved with independent witness and proof beyond

reasonable doubt and with the help of tallying with the

documents previous to litigation.

19. Although lower court quoted Judgment of HonbleSupreme Court in the case of Subodh kumar in page

number 30 & 31 of its judgement and Honble court failed to

take into account the following words of the Judgment Such

alienations would be void except the extent of manager share

The purchaser could get only the manager share. To

that extent also lower court conclusions are bad in law.

20. When seller himself along with other members offamily accept in their pleadings that there is legal necessity

to sell the properties and EX P35 produced by plaintiff itself

shows such consideration is shared by all including plaintiff,then there is no need for this appellant to prove legal

necessity. Plaintiff herself should prove how her father at the

age of 75 years started for the first time to mismanage the

properties. Is it possible for such old man to mismanage and

have any unlawfull and illegal habits at that stage all of a

sudden. If there is no equitable distribution that does not

mean imputations of such nature can be made against such

a man at that stage.

21. The partition is already made in 1992 when theamendment act of Karnataka was not in force. There is no

discrimination regarding registered and un-registered

partition in Karnataka amendment. The Karnataka

amendment was made void to the extent of central

government amendment which was enforced in 2005. The

central act specifically exempts all the registered transfers

(sale deeds) made prior to 20-12-2004. Which in all

probability plaintiff have no legal rights to challenge such

alienations from the date of suit to the subsequent changes

in law.


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22. Karnataka Amendment Act, 1990, which disentitles adaughter married prior to coming into force of Karnataka

Amendment Act, 1990 from being entitled to be a coparcener

as per Section 6A(d), The State Amendment Act of 1990,

which was brought into force from 30.7.1994. It is an

undisputed fact as per records that plaintiff marriage has

been performed. Plaintiff in her deposition dated 02-06-2005

cross examination portion clearly states that 1990 g Ag

z .P. Rg gg ev DVz. Plaint copy

deliberately hides the name of her husband and marriage

status. Hence in all probability the plaintiff is not aa co-

parcener on the date of alleged sale as per Karnataka

amendment.

23. The EX P 33 the plaint copy in OS 4/1997 showsplaintiffs husband name. This shows plaintiff made a

deliberate and tactful attempt to shield her marriage status

before the lower court. When there is a specific law that

women married before act came to force not entitled to share

in ancestral and joint family properties. There is no need for

written statement pleadings as to it. Plaintiff should give

clear facts of her date of marriage and other facts to get

rights under such law. Suppression of such material facts is

a fraud played on courts.

24. The Central Act of 2005 also mentions in proviso toSection 6(1) that nothing contained in the subsection 6(1)

shall affect or invalidate any disposition or alienation or

including any partition or testamentary or disposition of

property which have taken place before 20th day ofDecember 2004. Hence partially the sale deeds executed

before 20-12-2004 are hit by the above law. Hence even if

plaintiff establishes that she is entitled to partition as per

amendments of Karnataka and Central government, her

rights are hit by above provisions and Plaintiff is not entitled


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to any decree against the alienations made in favour of 6 th

and 7thdefendants.

25. Lower court completely relied on the statement andpleading of plaintiff to come to conclusion that there is no

earlier partition. The relevancy of mutation record is

completely ignored as to whether the alleged palupatti

(marked for specific purpose with specific order) is acted

upon or not. Even if the stray sentence of plaintiff shows she

is suppressing material facts before the court then stray

sentence of plaintiff defeats her own case.

26. The court failed to appreciate all set of probable factsout of pleadings and depositions. The court failed to

appreciate the conduct of parties when looked into their

conduct in suppression of material facts, conduct in other

proceedings, conduct in revenue proceedings.

27. The observation of lower court in page 26 of thejudgment about revenue court appeal dismissed in RRT

106/98-99 (EX D19) shows there is no violation of any

lawfull procedure followed in changing katha as per sale

deed. Although its an admitted fact that change of katha is

challenged by plaintiff and she lost her appeal. What does

that show? Even plaintiff in her deposition accepts service of

notice and not objecting to such change. That shows plaintiff

failed to show any illegality in change of katha. Such

admitted fact goes with this appellant. Such fact is

improperly appreciated by the lower court in favour of

plaintiff.

28. The plaintiff is not an un-educated lady she isgovernment servant. The following Contrary versions of

plaintiff defeats her own case:-

1. On 02-06-2005 cross of PW1 in page 2z LlA A. 1 gPtg A. 11/1 v 11/2 g Eg 12 UAm sAi 6


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w UP Rj irzg JAzg Uw.In facts

disclosed and relied by plaintiff in Ex P 31 shows the other

thing that she had knowledge of such sale. Why plaintiff

deposed falsely about such question?

2. On 13-06-2005 cross of PW1 in page 5 & 6 vPggg. .. .. .. z vPgg U n

Av. D n vUzPArz. D Avg

vg Az vPgg . UP v Ai gg

jU SvU zu irg U J. Aig Az

C z. This shows plaintiff had sufficient

knowledge of sale and change of katha, she has not filed any

objections to it. Only B.G. Pramiladevi has filed objections to

such sale. Later matter compromised. Then appeal filed by

plaintiff in RRT 106/98-99, which was also dismissed. Thisclearly shows that plaintiff with all knowledge of such sale in

1996 itself choose to remain silent and later with much after

thought with new grounds have hosted civil suit by

suppressing many material facts.

3. On 17-07-2007 cross of PW1 in page 11 z PAzsz z dU AAzs l Sv AiigAiig jEvAz rgv Dzg QAi Azjz vg

PZjAi Dg.n. U P rgv Dzg Cz E

wiVg. .. .. .. .. .. Dzg vg AiiAiz

zAi K zgUvz D U wiP JAz

UAz Ag Pnzg. D Ag F AiiAiz

dgrgv. Here plaintiff attitude can be seen in

suppression of real facts and hiding of material facts even at

that late stages. There is no single document of Tahsildar

endorsement produced by plaintiff. This shows unclean

hands of plaintiff.


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4. On 21-07-2005 cross examination of PW1 page 9 v 25-05-2005 gAz Dg.Dg.n A. 106/98-99 g Pgt e DVg Zg

Uwz. Czg gz C z. D U zR dg

irz.This showsPlaintiff knowingly hides many things

before the court. Speaks falsely having submitted documents

but still hides it.

29. The following averments of defendants explains theprima facie defence of 6thand 7thdefendants:-

1. 22-09-2005 chief examination of DW1 page 1 UAUUPq v EAV s Jgq wz. Cg Pqz

nU irzg. This is not specifically disputed by

counsel of plaintiff, in page 4 of 24-11-2005 cross

examination the PW1 signature is marked as EX D 20(b).

There is no objections to marking of the same. Once such

signature issue is admitted and marked, plaintiff counsel

cannot dispute it in argument stage.

2. 22-09-2005 chief examination of DW1 page 1 C n vAzAi P PnU Az. zj zRAi d

RjPAq UP PnU dg rPAz

vUzPArzg.This shows palupatti came to the hands of D-

6 through D-1.

3. 24-11-2005 cross examination of DW1 page 5 & 6 7w sAi Aivg GzP jwPArzg JAz

j. .. .. .. .. vAz igl irz w 7 w

zz JAz z j.This shows plaintiff is not in

joint possession of all the suit schedule properties as on thedate of filing of suit.

4. 25-11-2005 cross examination of DW1 page 10 zRAiv U v UAq j z Jz jAi.

U z Aiz UAU JAz Ai wzr

irz JAz jAiThis type of proto type allegations is


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made to all defendant witness, no where specifically

suggested to any witness that Gangamma signature marked

as Exhibit D 20(b) is forged one, Gangamma signature isnot in kannada but in english. No where it is suggested that

despite knowledge about gangammas signature witness has

claimed wrong signature as that of gangamma. When such

suggestions and objections are not taken specifically by

plaintiff it is deemed admission that signature is that of

plaintiff.

5. 24-11-2005 cross examination of DW1 page 11 UAU

z 1990 g DVv DPAi zU iqVz wj

vAz d ijzg. vAz irzg Czg Mg MAz

P 61 g g irzg. g Eg irzg JAz

DU. D ir 18 UVz. UAU z

zzg UAq Ai Dv. D z Jgq qv.

D zAi UAq Aig RZ ir z irzg JAzg

jAi. This shows there is legal necessity to sell properties

to D-6 contrarily plaint pleadings shows that there is rich

income in suit properties, but plaintiff changes her stand in

cross examination that D-1 is poor to do the marriage of

plaintiff and plaintiff husband himself arranged the marriage

expenses. This shows unclean hands of plaintiff.

6. 24-11-2005 cross examination of DW1 page 11 v UAq 6 wAz t qzPAq vAz jz

sAi igl irz JAz jAi .. .. .. vAz

j Ez sAi igl ir t sAi

CU GAiVPArz JAz jAi. Gvz

sU r-20 g qzPAq, U iq

Q wz JAzg jAi.The plaintiff although

raises in her pleadings about fabrication of documents onthe part of 6thdefendant and other defendants, here in cross

examination plaintiff specifically allege and accepts that the

consideration is paid by 6thdefendant in the sale deed, and

her stand is specific that there is some grievance in

distribution of properties against DW1 her sister. This does

not entitle plaintiff to shift her stand and obstruct and


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harass bonafide purchaser as done in EX P 35, EX D 19, EX

D 33.

Where fore from all the facts and probabilities the Honble court

may be pleased to set aside the lower court decree against

appellants herein and Defendants 6 & 7 in lower court and declare

this appellants as bonafide purchasers by allowing this appeal as

prayed in appeal memo and to any such other orders as suitable in

the ends of justice.

Date: 08-11-2013 Advocate for appellants

Tumkur


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IN THE COURT OF 3RDADDITIONAL DISTRICT AND SESSIONS JUDGE AT

TUMKUR

RA 315/2007


N.ARUNA & Anr GANGAMMA & ORS

INDEX OF CASE LAWS SUBMITTED

NO PARTICULARS1 STATE OF BIHAR VS. RADHA KRISHNA SINGH & ORS. AIR 1983

SC 684

2 KALYAN SINGH CHOUHAN VS C.P.JOSHI 2011 AIR 1127

3 MAHADEORAO SUKAJI SHIVANKAR VS. RAMARATAN BAPU &

ORS (2004) 7 SCC 181

4 NOORDUDDIN V. DR. K. L. ANAND, 1995 (1) SCC 242 : (1994 AIR

SCW 5093)

5 GOPAL KRISHNAJI KETKAR V. MAHOMED HAJI LATIF AND ORS.

AIR 1968 SC 1413

6 RATNAM CHETTIAR & ORS VS S. M. KUPPUSWAMI CHETTIAR &

ORS 1976 AIR, 1

7 AMTESHWAR ANAND V. VIRENDER MOHAN SINGH & ORS;

(2006) 1 SCC 148

8 D.S. LAKSHMAIAH & ANR. VS L. BALASUBRAMANYAM & ANR.

REPORTED IN 2003 AIR 3800 AND DANDAPPA RUDRAPPA

HAMPALI AND ... VS RENUKAPPA ALIAS REVANAPPA AIR 1993

KANT 148

9 BHAGWAN DAYAL VS MST. REOTI DEVI 1962 AIR 287, 1962 SCR

(3) 440

10 KALYANI V. NARAYANAN, REPORTED IN AIR 1980 SC 1173

11 SMT. NANJAMMA AND ANOTHER VS STATE OF KARNATAKA AND

OTHERS (DB) ILR 1999 KAR 1094, 1999 (2) KARLJ 109

12 GANDURI KOTESHWARAMMA & ANR. VS CHAKIRI YANADI &

ANR. AIR 2012 SC 169 2011 (9) SCC 788

13 S.P. CHENGALVARAYA NAIDU VS. JAGANNATH, REPORTED IN

1994 (1) SCC 1

14 RAM CHANDRA SINGH VS. SAVITRI DEVI AND OTHERS,

REPORTED IN (2003) 8 SCC 319

15 CHANDRA SHASHI V. ANIL KUMAR VERMA, (1995) 1 SCC 421

DATE:08-11-2013

TUMKUR ADVOCATE FOR APPELLANT


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IN THE COURT OF 3RDADDITIONAL DISTRICT AND SESSIONS JUDGE AT

TUMKUR

RA 315/2007


N.ARUNA GANGAMMA & ORS

IN REFERENCE TO THE GROUNDS URGED IN WRITTEN ARGUMENTS

APPELLANT RELIES ON THE FOLLOWING CITATIONS:-

1. POST LITIGATION DOCUMENT DOES NOT HAVE ANY VALUE:-IN a case of STATE OF BIHAR Vs. RADHA KRISHNA SINGH & ORS. AIR 1983

SC 684 it was observed as follows: Admissibility of a document is one thing

and its probative value, quite another: a document may be admissible and yet

may not carry any conviction and weight or its probative value may be nil. It is

also well settled that statements or declarations before persons of competent

knowledge made ante litem motam are receivable to prove ancient rights of a

public or general nature. The admissibility of such declarations is, however,

considerably weakened if it pertains not to public rights but to purely private

rights. It is equally well settled that declarations or statements made post litemmotam would not be admissible because in cases or proceedings taken or

declarations made ante litem motam, the element of bias and concoction is

eliminated. Before, however, the statements of the nature mentioned above can

be admissible as being ante litem motam they must not only be before the

actual existence of any controversy, but should be made even before the

commencement of legal proceedings. This position however cannot hold good

of statements made post litem motam which would be clearly inadmissible in

evidence. The reason for this rule seems to be that after a dispute has begun or

a legal proceeding is about to commence, the possibility of bias, concoction or

putting up false pleas cannot be ruled out.


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2. NO PARTY SHOULD BE PERMITTED TO TRAVEL BEYOND ITSPLEADING AND THAT ALL NECESSARY AND MATERIAL FACTS

SHOULD BE PLEADED BY THE PARTY IN SUPPORT OF THE CASE SET

UP BY IT

In THE SUPREME COURT OF INDIA Decision in a case of election matter, in

Kalyan Singh Chouhan vs C.P.Joshi 2011 AIR 1127 = 2011 (2 ) SCR 216 =

2011 (11 ) SCC 786, Justice P. SATHASIVAM & Justice Dr. B.S. CHAUHAN

observed following principles of case law on Importance of pleadings as also

applicable to civil court proceedings is discussed with following citations:- This

Court in Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors.,

AIR 1987 SC 1242 held as under: "It is well settled that in the absence of

pleading, evidence, if any, produced by the parties cannot be considered. It is

also equally settled that no party should be permitted to travel beyond its

pleading and that all necessary and material facts should be pleaded by the

party in support of the case set up by it. The object and purpose of pleading is to

enable the adversary party to know the case it has to meet........ In such a case it

is the duty of the court to ascertain the substance of the pleadings to determine

the question." This Court in Bachhaj Nahar v. Nilima Mandal & Ors. , AIR 2009

SC 1103, held as under: "The object and purpose of pleadings and issues is to

ensure that the litigants come to trial with all issues clearly defined and to

prevent cases being expanded or grounds being shifted during trial. Its object is

also to ensure that each side is fully alive to the questions that are likely to be

raised or considered so that they may have an opportunity of placing the

relevant evidence appropriate to the issues before the court for its

consideration. The object of issues is to identify from the pleadings the

questions or points required to be decided by the courts so as to enable parties

to let in evidence thereon. When the facts necessary to make out a particular

claim, or to seek a particular relief, are not found in the plaint, the court cannot

focus the attention of the parties, or its own attention on that claim or relief, by

framing an appropriate issue........ Thus it is said that no amount of evidence, on

a plea that is not put forward in the pleadings, can be looked into to grant any

relief. The jurisdiction to grant relief in a civil suit necessarily depends on the

pleadings, prayer, court fee paid, evidence let in, etc."


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3.ALL "MATERIAL FACTS" MUST BE PLEADED BY THE PARTY INSUPPORT OF THE CASE SET UP BY HIM

In Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu & Ors (2004) 7

SCC 181"material facts" are facts upon which the plaintiff's cause of action or

defendant's defence depends. Broadly speaking, all primary or basic facts

which are necessary either to prove the cause of action by the plaintiff or

defence by the defendant are "material facts". Material facts are facts which, if

established, would give the petitioner the relief asked for. But again, what

could be said to be material facts would depend upon the facts of each case and

no rule of universal application can be laid down. In this regard In support of

written statement averments and objections to IA this defendants rely on the

decision of Supreme court to show balance of convenience on defendant side. In

Harkirat Singh v. Amrinder Singh (2005) 13 SCC 511, Supreme Court again

reiterated the distinction between `material facts' and `material particulars'

and observed as under: "51. A distinction between "material facts" and

"particulars", however, must not be overlooked. "Material facts" are primary or

basic facts which must be pleaded by the plaintiff or by the defendant in

support of the case set up by him either to prove his cause of action or defence.

"Particulars", on the other hand, are details in support of material facts

pleaded by the party. They amplify, refine and embellish material facts by

giving distinctive touch to the basic contours of a picture already drawn so as

to make it full, more clear and more informative. "Particulars" thus ensure

conduct of fair trial and would not take the opposite party by surprise. 52. All

"material facts" must be pleaded by the party in support of the case set up by

him. Since the object and purpose is to enable the opposite party to know the

case he has to meet with, in the absence of pleading, a party cannot be allowed

to lead evidence. Failure to state even a single material fact, hence, will entail

dismissal of the suit or petition. Particulars, on the other hand, are the details

of the case which is in the nature of evidence a party would be leading at the

time of trial."

4.JUDICIAL PROCESS SHOULD NEVER BECOME AN INSTRUMENT OFOPPRESSION OR ABUSE OR A MEANS IN THE PROCESS OF THE

COURT TO SUBVERT JUSTICE


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Noorduddin v. Dr. K. L. Anand, 1995 (1) SCC 242 : (1994 AIR SCW 5093)

the Apex Court observed as under (at page 5099 of AIR SCW): "The object of

law is to mete out justice. Right to the right, title or interest of a party in the

immovable property is a substantive right. But the right to an adjudication of

the dispute in that behalf is a procedural right to which no one has a vested

right. The faith of the people in the efficacy of law is the saviour and succour for

the sustenance of the rule of law. Any weakening like in the judicial process

would rip apart the edifice of justice and create a feeling of disillusionment in

the minds of the people of the very law and courts. The rules of procedure have

been devised as a channel or a means to render substantive or at best

substantial justice which is the highest interest of man and almighty for the

mankind. It is a foundation for orderly human relations. Equally the judicial

process should never become an instrument of oppression or abuse or a means

in the process of the Court to subvert justice."

5. COURT MAY DRAW AN ADVERSE INFERENCE IF HE WITHHOLDIMPORTANT DOCUMENTS IN HIS POSSESSION

Observations of the Hon'ble Supreme Court in the case of Gopal Krishnaji

Ketkar v. Mahomed Haji latif and Ors. AIR 1968 SC 1413: Even if the burden

of proof does not lie on a party the Court may draw an adverse inference if he

withhold important documents in his possession which can throw light on the

facts at issue. It is not, in our opinion, a sound practice for those desiring to rely

upon a certain state of facts to withhold from the Court the best evidence which

is in their possession which could throw light upon the issues in controversy

and to rely upon the abstract doctrine of onus of proof.

6. PARTITION EFFECTED CANNOT BE RE-OPENED UNLESS IT ISSHOWN IT IS OBTAINED BY FRAUD COERCION

MISREPRESENTATION AND UNDUE INFLUENCE

Ratnam Chettiar & Ors vs S. M. Kuppuswami Chettiar & Ors 1976 AIR, 1

1976 SCR (1) 863


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(1) A partition effected between the members of an Hindu Undivided Family by

their own volition and with their consent cannot be reopened unless it is shown

that it was obtained by fraud, coercion, misrepresentation or undue influence.

In such a case. the Court should require strict proof of facts, because, an act

inter vivos cannot be lightly set aside.

(2) When the partition is effected between the members of the Hindu Undivided

Family which consists of minor coparceners it is binding on the minors also, if it

is done in good faith and in a bona fide manner keeping into account the

interests of the minors.

(3) But if the partition is proved to be unjust and unfair and is detrimental to

the interests of the minors the partition can be reopened after any length of

time. In such a case, it is the duty of the Court to protect and safeguard the

interests of the minors and the onus of proof that the partition was just and fair

is on the party supporting the partition.

(4) Where there is a partition of immovable and movable properties, but thetwo transactions are distinct and separable, or have taken place at different

times, if it is found that only one of these transactions is unjust and unfair, it is

open to the court to maintain the transaction which is just and fair and to

reopen the partition that is unjust and unfair.

7. PARTITION DEED WHICH WAS MUTUALLY ACTED UPON CANNOTBE QUESTIONED FOR ITS NON-REGISTRATION 2005 SC

Amteshwar Anand v. Virender Mohan Singh & Ors; (2006) 1 SCC 148 Section

17(1) of the Registration Act, 1908 in so far as it is relevant, requires under

Clause (b) thereof, registration of "non-testamentary instruments which

purport or operate to create, declare, assign, limit or extinguish, whether in

present or in future, any right, title or interest, whether vested or contingent, of

the value of one hundred rupees and upwards, to or in immovable property".

Sub section (2) of Section 17 creates exceptions to the mandatory requirements

of Section 17(1) (b) and (c). One of the exceptions made in Section 17(2) of the

Registration Act 1908, is Clause (i). This exception pertains to "any composition

deed." In other words all composition deeds are exempt from the requirement

to be registered under that Act . The Composition Deed in this case was a


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transaction between the members of the same family for the mutual benefit of

such members. It is not the appellants' case that the agreements required

registration under any other Act. Apart from this, there is the principle that

Courts lean in favour of upholding a family arrangement instead of disturbing

the same on technical or trivial grounds particularly when the parties have

mutually received benefits under the arrangement . Both the courts below had

concurrently found that the parties had enjoyed material benefits under the

agreements. We have ourselves also re-scrutinized the evidence on record on

this aspect and have found nothing to persuade us to take a contrary view.

8. INITIAL BURDEN OF PROVING EXISTENCE OF JOINT FAMILYPROPERTY IS ON PLAINTIFF 2003 SC

JUSTICE Y Sabharwal, and JUSTICE B Agarwal in the case of D.S.

Lakshmaiah & Anr. Vs L. Balasubramanyam & Anr. Reported

in 2003 AIR 3800 = 2003 (3 ) Suppl. SCR 13 = 2003 (10) SCC 310 = 2003 (7 ) JT 493 = 2003 (7 ) SCALE 1 The legal principle,

therefore, is that there is no presumption of a property being joint family

property only on account of existence of a joint Hindu family. The one who

asserts has to prove that the property is a joint family property. If, however, the

person so asserting proves that there was nucleus with which the joint family

property could be acquired, there would be presumption of the property being

joint and the onus would shift on the person who claims it to be self-acquired

property to prove that he purchased the property with his own funds and not

out of joint family nucleus that was available.

Dandappa Rudrappa Hampali And ... vs Renukappa Alias Revanappa AIR

1993 Kant 148, ILR 1993 KAR 1182, 1993 (1) KarLJ 138 All properties

inherited by a male Hindu from his father, father's father or father's paternal

grand father, is 'ancestral property'. A person may possess ancestral property

as well as his self acquired property; it is permissible for a coparcener to blend

his self acquired property with that of the ancestral or joint family property. A

property acquired with the aid of the joint family property also becomes joint

family property. The person acquiring a property if has command over

sufficient joint family property, with the aid of which the new property could be


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acquired, there is a presumption that the acquired property belongs to the joint

family. In such a case the acquieser has to show that his acquisition was

without the aid of any joint family assets. However the initial burden is on the

person who asserts, that the newly acquired asset is of the joint family to prove,

that the acquieser had command over sufficient joint family assets with the aid

of which he could have acquired the new asset.

9. COPARCENARY IS A CREATURE OF HINDU LAW AND CANNOT BECREATED BY AGREEMENT OF PARTIES EXCEPT IN THE CASE OF

REUNION 1962 SC

Bhagwan Dayal vs Mst. Reoti Devi 1962 AIR 287, 1962 SCR (3) 440 Every

Hindu family is presumed to be joint unless the contrary is proved; but this

presumption can be rebutted by direct evidence of partition or by course of

conduct leading to an inference of partition. There is no presumption that when

one member separates from the others the latter remain united; whether thelatter remain united or not must be decided on the facts of each case. in the

case of old transactions when no contemporaneous documents are maintained

and when most of the active participants of the transactions have passed away,

though the burden still remains on the person who asserts separation, it. is

permissible to fill up gaps more readily by reasonable inferences than in cases

where the evidence is not obliterated by passage of time. The conduct of the

parties for about 50 years was consistent with their separation rather than

with their jointness. Held, further, that it was not established that there was

any reunion between K and his nephews. Reunion must be strictly proved. To

constitute reunion there must be an intention of the parties to reunite in estate

and interest. It is implicit in the concept of a reunion that there shall be an

agreement between the parties to reunite in estate -with an intention to revert

to their former status of a joint Hindu family. It is not necessary that there

should be a formal and express agreement to reunite; such an agreement can

be established by clear evidence of conduct incapable of explanation on any

other footing. In, the plaint it was not alleged that a reunion had taken place by

agreement but the court was asked to hold that there was reunion on the

ground that the conduct of parties amounted to a reunion. The conduct of the

parties spreading over 50 years did not show that K and his nephews had

consciously entered into an agreement to reunite and become members of a


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joint Hindu family. .. Coparcenary is a creature of Hindu law and cannot be

,created by agreement of parties except in the case of reunion. It is a corporate

body or a family unit. The law also recognizes a branch of the family as a

subordinate corporate body. The said family unit, whether the larger one or the

subordinate one, can acquire, hold and dispose of family property subject to the

limitations laid down by law. Ordinarily, the manager, or by consent, express or

implied, of the members of the family, any other member or members can carry

on business or acquire property, subject to the limitations laid down by the said

law, for or, on behalf of the family. Such business or property would be the

business or property, of the, family. The identity of the members of the, family is

not completely last in the family. One or more - members of :that family can

start a business or acquire property without the aid of the joint family

Property, but such business or acquisition would his or their acquisition. The

business so started or property so acquired can be thrown into the common

stock or blended with the joint family property in which case the said property

becomes the estate of the joint family. But he or they need not do so, in which

case the said property would be his or their self- acquisition, and succession tosuch property would be governed not by' the law of joint family but only by the

law of inheritance. In such a case if a property was jointly acquired by them, it

would not be governed by the law of joint family ; for Hindu law does not

recognize some of the members of a joint family belonging to different

branches, or even to a single branch, as a corporate unit. Therefore, the rights

inter se between the members who have acquired the said property would be

subject to the terms of the agreement where under it was acquired.

10.ONCE A DISRUPTION OF JOINT FAMILY STATUS TAKES PLACE,COPARCENERS CEASE TO HOLD THE PROPERTY AS JOINT TENANTS

BUT THEY HOLD AS TENANTS-IN-COMMON

The Hon'ble Apex Court in the case of Kalyani v. Narayanan, reported in AIR

1980 SC 1173 has observed that :-- "Where one of five sons is separated unless a

reunion is pleaded, other four sons cannot constitute a corporate body like a

co-parcenary by agreement or even by subsequent conduct of remaining

together enjoying the property together." Partition can be partial qua person

and property but a partition which follows disruption of a joint family status


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will be amongst those who are entitled to a share on partition. .

There was first a disruption of the joint family by specifying the shares ...

Till disruption of joint family status takes place no coparcener can claim what

is his exact share in coparcenary property. It is liable to increase and decrease

depending upon the addition to the number or departure of a male member

and inheritance by survivorship. But once a disruption of joint family status

takes place, coparceners cease to hold the property as joint tenants but they

hold as tenants-in-common. Looking to the terms of Ext.P-1 there was a

disruption of joint family status, the shares were specified and vested, liabilities

and obligations towards the family members were defined and imbalance out

of unequal division was corrected. This certainly has effect of bringing about

disruption of joint family status and even if there was no partition by metes and

bounds and the coparceners continued to remain under the same roof or

enjoyed the property without division by metes and bounds, they did not hold as

joint tenants unless re-union is pleaded and proved.

11.THE DAUGHTERS MARRIED PRIOR TO THE COMMENCEMENT OFTHE AMENDMENT ACT WERE DEPRIVED OF THE RIGHT TO CLAIM

THE SHARE IN THE COPARCENARY PROPERTY

Smt. Nanjamma And Another vs State Of Karnataka And Others (DB) ILR

1999 KAR 1094, 1999 (2) KarLJ 109 A revolutionary change was made in

the Hindu Law by insertion of Section 6-A vide Karnataka Act No. 23 of 1994, by

which a daughter of a coparcener was declared to become a coparcener upon

her birth and entitled to same rights in the coparcenary property as were

available to a son inclusive of the right to claim by survivorship and be subject

to the same liabilities and disabilities in respect thereto as the son. It was

further provided that upon partition in such a Joint Hindu Family the

coparcenary property shall be so divided as to allot to a daughter the same

share as is allottable to a son. However, by virtue of clause (d) a classification

was made between married daughters. The daughters married prior to the

commencement of the Amendment Act were deprived of the right to claim the

share in the coparcenary property as was available to an unmarried daughter

or a daughter married after the enforcement of the said Act. The alleged

discrimination cannot be termed to be either unreasonable or irrational and


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without basis. The offending portion of clause (d) of Section 6-A is intended to

achieve an objective.

12.ALIENATION INCLUDING ANY PARTITION HAS TAKEN PLACEBEFORE DECEMBER 20, 2004 CANNOT BE CHALLENGED BY WOMEN

CO-PARCENERS

Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr. AIR 2012 SC

169 2011 (9) SCC 788, The right accrued to a daughter in the property of a

joint Hindu family governed by the Mitakshara Law, by virtue of the 2005

Amendment Act, is absolute, except in the circumstances provided in the

proviso appended to sub-section (1) of Section 6. The excepted categories to

which new Section 6 of the 1956 Act is not applicable are two, namely, (i)

where the disposition or alienation including any partition has taken place

before December 20, 2004; and (ii) where testamentary disposition of property

has been made before December 20, 2004. Sub- section (5) of Section 6 leavesno room for doubt as it provides that this Section shall not apply to the

partition which has been effected before December 20, 2004.

13.UNTILL FINAL DECREE IS PASSED PRELIMINARY DECREE CAN BECHANGED AS THE LAW CHANGES:-

Ganduri Koteshwaramma & Anr. vs Chakiri Yanadi & Anr. AIR 2012 SC

169 2011 (9) SCC 788, The suit for partition is not disposed of by passing of

the preliminary decree. It is by a final decree that the immovable property of

joint Hindu family is partitioned by metes and bounds. After the passing of the

preliminary decree, the suit continues until the final decree is passed. If in the

interregnum i.e. after passing of the preliminary decree and before the final

decree is passed, the events and supervening circumstances occur necessitating

change in shares, there is no impediment for the court to amend the

preliminary decree or pass another preliminary decree redetermining the

rights and interests of the parties having regard to the changed situation. We

are fortified in our view by a 3- Judge Bench decision of this Court in the case of

Phoolchand and Anr. Vs. Gopal Lal AIR 1967 SC 1470 wherein this Court stated

as follows: "We are of opinion that there is nothing in the Code of Civil


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Procedure which prohibits the passing of more than one preliminary decree if

circumstances justify the same and that it may be necessary to do so

particularly in partition suits when after the preliminary decree some parties

die and shares of other parties are thereby augmented. . . . .. So far therefore as

partition suits are concerned we have no doubt that if an event transpires after

the preliminary decree which necessitates a change in shares, the court can and

should do so; ........... there is no prohibition in the Code of Civil Procedure against

passing a second preliminary decree in such circumstances and we do not see

why we should rule out a second preliminary decree in such circumstances only

on the ground that the Code of Civil Procedure does not contemplate such a

possibility. . . for it must not be forgotten that the suit is not over till the final

decree is passed and the court has jurisdiction to decide all disputes that may

arise after the preliminary decree, particularly in a partition suit due to deaths

of some of the parties. . . . .a second preliminary decree can be passed in

partition suits by which the shares allotted in the preliminary decree already

passed can be amended and if there is dispute between surviving parties in that

behalf and that dispute is decided the decision amounts to a decree.... ............."

14.IF HE WITHHOLDS A VITAL DOCUMENT IN ORDER TO GAINADVANTAGE AGAINST THE OTHER SIDE, THEN HE WOULD BE

GUILTY OF PLAYING FRAUD ON THE COURT

In the decision, S.P. Chengalvaraya Naidu vs. Jagannath, reported in 1994 (1)

SCC 1, the Hon'ble Supreme Court has held that a fraud is an act of deliberate

deception with the design of securing something by taking unfair advantage of

another. It is a deception in order to gain by another's loss. It is a cheating

intended to get an advantage. A litigant, who approaches the court, is bound to

produce all the documents executed by him which are relevant to decide the

litigation and if he withholds a vital document in order to gain advantage

against the other side, then he would be guilty of playing fraud on the court as

well as on the opposite party.

15.FALSE REPRESENTATION EVEN WITHOUT BAD MOTIVE IS FRAUD


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In Ram Chandra Singh vs. Savitri Devi and others, reported in (2003) 8 SCC

319, the Hon'ble Apex Court has held that it is a fraud in law if a party makes

representations which he knows to be false and injury ensues therefrom

although the motive from which the representations proceeded may not be bad.

NOBODY SHOULD BE PERMITTED TO INDULGE IN IMMORAL ACTS

LIKE PERJURY, PREVARICATION AND MOTIVATED FALSEHOODS

In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421, held that nobody

should be permitted to indulge in immoral acts like perjury, prevarication and

motivated falsehoods in the judicial proceedings and if someone does so, it must

be dealt with appropriately. In case the recourse to a false plea is taken with an

oblique motive, it would definitely hinder, hamper or impede the flow of justice

and prevent the courts from performing their legal duties.

DATE:- 08-11-2013

PLACE:- TUMKUR ADVOCATE FOR APPELLANT

Written Arguments in Partition Suit on Behalf of Purchaser

Documents

Transcript of Written Arguments in Partition Suit on Behalf of Purchaser