The High Court
Case Details
- 1 - NC: 2025:KHC:11070 RSA No. 173 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 173 OF 2016 (PAR) BETWEEN: 1. SRI K P VISHALAKSHAN S/O SRI. ANANDAN SINCE DEAD APPELLANT Nos.2 TO 4 ARE LRS OF APPELLANT No.1 2. SMT. K.C. VRINDA D/O SRI. K.P. VISHALAKSHAN, AGED ABOUT 44 YEARS . 3. SMT. K.C. VANDANA D/O SRI.K.P. VISHALAKSHAN, AGED ABOUT 38 YEARS 4. SRI. K.C. VIVEK S/O SRI. K.P. VISHALAKSHAN AGED ABOUT 41 YEARS ALL ARE R/AT "AISHWARYA", UDUMBRA ROAD, THIRUVANNUR CALICUT – 673 001 NOW AT BENGALURU. Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA (BY SRI. VISWANATHA SETTY V., ADVOCATE A2 TO A4 ARE LRS OF DECEASED A1) …APPELLANTS AND: 1. SMT. V C NISHA D/O SRI. V.K. KUMAR - 2 - NC: 2025:KHC:11070 RSA No. 173 of 2016 AGED ABOUT 55 YEARS, R/AT PATHALAMBATH KRIPA DARSHAN (POST CHALAD), KANNUR DISTRICT – 670106. 2. SRI. JOGISIDDAIAH S/O SRI. SIDDAIAH, AGED ABOUT 59 YEARS R/AT HANCHYA VILLAGE, KASABA HOBLI - 570012 MYSORE TALUK. (BY SRI. L.M. RAMAIAH GOWDA, ADVOCATE) …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 18.11.2015 PASSED IN R.A NO.5018/2015 ON THE FILE OF THE III ADDL. DISTRICT AND AT SRIRANGAPATNA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.03.2015 PASSED IN O.S NO.79/2011 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC., SRIRANGAPATTANA. SESSIONS MANDYA, SITTING JUDGE, THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 18.11.2015 passed in R.A.No.5018/2015 by the learned III Additional District and Sessions Judge, Mandya, sitting at Srirangapatna. - 3 - NC: 2025:KHC:11070 RSA No. 173 of 2016 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the
Legal Reasoning
plaintiffs that one Mythili was the mother of
Legal Reasoning
Sri.V.C.Jayakumar, V.C.Beena, V.C.Rajeev, V.C.Nisha i.e., defendant No.1. The plaintiffs are the legal heirs of late V.C.Beena. V.C.Jayakumar and V.C.Rajeev died issueless. The suit schedule properties were purchased by Mythili on 15.12.1983. Due to her ill health and eyesight problem, she had entrusted the management and control of the suit schedule properties to her son Jayakumar in 1990. He managed the property for and on behalf of the mother untill his death in 2005. After the death of Jayakumar, defendant No.1 and her husband have been managing the - 4 - NC: 2025:KHC:11070 RSA No. 173 of 2016 property for and on behalf of Mythili. After the demise of Mythili in 2008, they continued the management as co- owners. After the death of Mythili, the plaintiffs are entitled to a half share in the suit schedule property and for the other half share the defendant No.1 is entitle to it. The plaintiffs issued notice demanding their share in the suit schedule property. Defendant No.1 replied, stating that she is the absolute owner of the property on 06.06.2009 and denied the plaintiffs claim. In the reply notice, defendant No.1 had taken contention that Jayakumar was the absolute owner of the suit schedule property, and he bequeathed the suit schedule property in favour of defendant No.1 by executing the Will on 13.09.2004. It is contended that, defendant No.1 has created a fraudulent document in favour of defendant No.2. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. - 5 - NC: 2025:KHC:11070 RSA No. 173 of 2016 3.1. Defendant No.1 filed a written statement denying the plaint averments and contended that at the time of purchasing the suit schedule property in the name of Mythili, Jayakumar paid the entire sale consideration amount to the vendors. Jayakumar was residing in the Gulf and he returned to India in 1985. After returning from the Gulf, he started cultivating the suit schedule property as an owner and the revenue records were transferred in the name of Jayakumar. As an owner, he had executed the Will in favour of defendant No.1, bequeathing the suit schedule property on 13.09.2004. After his demise, based on the Will, defendant No.1 became the absolute owner of the suit schedule property, and the revenue records were changed in the name of defendant No.1. It is further contended that Smt. Mythili submits no objection to change the khata based on the Will executed by her son Jayakumar, and the revenue records were changed in the name of defendant No.1. Defendant No.1 executed a registered sale deed in favour of defendant No.2 regarding the suit schedule property and defendant No.2 is in - 6 - NC: 2025:KHC:11070 RSA No. 173 of 2016 possession of suit property. Accordingly, prays to dismiss the suit against defendant No.1. 3.2. Defendant No.2 filed a written statement contending that defendant No.1 was the absolute owner of the suit schedule property and defendant No.1 had sold the suit schedule property in favour of defendant No.2 under a registered sale deed dated 09.11.2006. Based on the registered sale deed dated 09.11.2006, the revenue authorities transferred the suit schedule property in the name of defendant No.2. It is contended that defendant No.2 is the bonafide purchaser for value without notice. Accordingly, he prays to dismiss the suit against defendant No.2. 3.3. The trial court, based on the pleadings of the parties, framed the following issues. 1) Whether the plaintiffs prove that suit schedule properties are the self-acquired properties of Mythili, mother-in-law of 1st plaintiff and grandmother of plaintiff Nos.2 to 4 and she died intestate leaving behind the plaintiffs and - 7 - NC: 2025:KHC:11070 RSA No. 173 of 2016 defendant No.1 as legal heirs and they are the co-owners of suit properties? 2) Whether the defendant Nos.1 and 2 proves that brother of defendant No.1 late V.C.Jayakumar had paid the sale consideration in respect of the suit property at the time of purchase and since from 1985 he was cultivating the suit property as rightful owner and had bequeathed the same under registered Will dated 13.09.2004 in favour of defendant No.1? 3) Whether defendant Nos.1 and 2 proves that defendant No.1 had executed a sale deed in respect of suit properties in favour of defendant No.2 as per sale deed dated 09.11.2006 and put him in possession of suit properties? 4) Whether the suit is bad for non-joinder of other properties? 5) Whether the suit is barred by limitation? 6) Whether the plaintiffs are entitled for half share in the suit schedule properties and for mesne profits? 7) What order or decree? 3.4. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW.1 and marked 14 documents as Exs.P1 to 14. On the other hand, the defendants in support of their defence, defendant No.1 - 8 - NC: 2025:KHC:11070 RSA No. 173 of 2016 was examined as DW. 1, defendant No.2 was examined as DW.2, examined one witness as DW.3, and marked 38 documents as Exs.D1 to 38. The trial court, after recording the evidence, hearing on both sides and assessing the oral and documentary evidence, answered issue Nos.1, 3 and 6 in the affirmative, issue No.2, 4 and 5 in the negative, and issue No.7 as per the final order. The suit of the plaintiffs was decreed with costs vide judgment dated 07.03.2015. It was declared that the plaintiffs are entitled to partition and separate possession of their half share in the suit schedule property by metes and bounds. Further, it was declared that the Will executed by Jayakumar in favour of defendant No.1 on 13.09.2004 and the sale deed executed by defendant No.1 in favour of defendant No.2 on 09.11.2006 is not binding on the share of the plaintiffs. Further the defendants are directed to give the share of the plaintiffs within 3 months from the date of the decree, if they fail to give their share, the plaintiffs are at liberty to take their share according to the law. It is also held that the plaintiffs are entitled to mesne - 9 - NC: 2025:KHC:11070 RSA No. 173 of 2016 profits from the date of the suit till the date of delivery of their share in the suit schedule properties. 3.5. Defendant No.1, aggrieved by the impugned judgment and preliminary decree passed in O.S.No.79/2011, preferred an appeal in R.A.No.5018/2018 on the file of III Additional District Judge and Sessions Judge, Mandya (sitting at Srirangapatna). 3.6. The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. 1) Whether the appellant has made out sufficient ground to allow the additional documentary evidence at appellant stage? 2) Whether the trial Court has committed any error of facts or law and interference by this Court in the judgment and decree passed by the trial Court is necessary? 3) What order? 3.7. The first appellate Court, on reassessment of oral and documentary evidence, answered point No.1 in - 10 - NC: 2025:KHC:11070 RSA No. 173 of 2016 the negative, point No.2 in the affirmative, and point No.3 as per the final order. The appeal filed by defendant No.1 was allowed. The judgment and decree passed by the trial court in O.S.No.79/2011 was set aside, and consequently, the suit of the plaintiffs was dismissed vide judgment dated 18.11.2015. The plaintiff, aggrieved by the judgment and decree dated 18.11.2015, passed in R.A.No.5018/2015, filed this regular second appeal. 4. Heard the arguments of the learned counsel for the plaintiffs, and learned counsel for defendant No.1. 5. Learned counsel for the plaintiffs submits that admittedly, suit schedule property was purchased by Mythili in 1983, and she was the absolute owner of the suit schedule property as per Section 14(1) of the Hindu Succession Act, 1956. Mythili has not transferred the suit schedule property in favour of Jayakumar by any registered instrument. He submits that Jayakumar had no right to bequeath the suit schedule property in favour of defendant No.1 under a Will dated 13.09.2004. Defendant - 11 - NC: 2025:KHC:11070 RSA No. 173 of 2016 No.1 had not acquired any title by a registered Will dated 13.09.2004. He submits that Mythili had four children i.e., V.C.Jayakumar, V.C.Beena, V.C.Rajeev, and V.C. Nisha i.e., defendant No.1. Jayakumar and Rajeev died as bachelors. Smt. Beena died, leaving behind the plaintiffs as her legal heirs. Admittedly, Mythili died intestate. The plaintiffs and defendant No.1 jointly succeeded to the estate of the deceased Mythili. The plaintiffs are entitled to a share in the suit schedule property. The first appellate Court committed an error in dismissing the suit on the ground that Mythili transferred the suit schedule property in favour of Jayakumar. The defendants have not produced any records to show how Mythili had transferred the suit schedule property in favour of Jayakumar. Hence, he submits that the first appellate Court committed an error in passing the impugned judgment. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, the learned counsel for defendant No.1 submits that Jayakumar had paid the consideration - 12 - NC: 2025:KHC:11070 RSA No. 173 of 2016 amount for purchasing the suit schedule property, which was purchased in the name of Mythili. He submits that Mythili has transferred the suit schedule property in favour of Jayakumar in the earlier settlement. She also stated before the revenue authorities to transfer the revenue records in the name of Jayakumar. He submits that Jayakumar became the absolute owner of the suit schedule property through an earlier settlement. The revenue records were transferred under the name, Jayakumar. Jayakumar had bequeathed the suit schedule property in favour of defendant No.1 by executing the registered Will dated 13.09.2004. The revenue authorities, based on the Will, transferred the revenue records in the name of defendant No.1, and defendant No.1 sold the suit schedule property in favour of defendant No.2 under the registered sale deed. He also submits that the suit for non-joinder of necessary parties is not maintainable as the other properties were standing in the name of Mythili. Further, defendant No.1 made an application to the revenue authorities for change of - 13 - NC: 2025:KHC:11070 RSA No. 173 of 2016 revenue records in the name of defendant No.1, based on the Will. Mythili appeared before the revenue authorities and gave a statement before the revenue authorities stating that the said property is owned and possessed by Jayakumar i.e., her son, and she has no objection to transfer the said property in the name of defendant No.1. Further, to buttress his arguments he has relied on the judgment of the Hon’ble Apex Court in the case of DIGAMBAR ADHAR PATIL VS. DEVRAM GIRIDHAR PATIL (DIED) reported in AIR 1995 SC 1728 and also placed his reliance on the judgment of this court in the case of RATHNAMMA AND ANOTHER VS HIRIYAMMA AND OTHERS reported in ILR 2014 KAR 2759. Hence, on these grounds, he prays to dismiss the appeal. 7. This court admitted the appeal on the following substantial question of law : 1) Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court mainly on the basis of the sale deed dated 15.12.1983 as per Ex.D29 when the suit schedule properties are the joint family properties? - 14 - NC: 2025:KHC:11070 RSA No. 173 of 2016 2) Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court without following the mandatory procedure as contemplated under Order 41 Rule 31 of the Code of Civil Procedure, 1908? 3) Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court and by exercising the discretionary finding that the suit power recorded a family schedule properties are the properties and the plaintiffs are entitled to ½ share in the suit schedule properties? joint 4) Whether the lower appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the present case? 8. Re-substantial questions of law Nos.1 to 4: All these substantial questions of law are interlinked. Hence, they are taken together for common discussion to avoid the repetition of facts. The plaintiffs to substantiate their case, plaintiff No.2 was examined as PW.1. She deposed that Mythili had four children, namely, V.C.Jayakumar, V.C.Beena, V.C.Rajeev, V.C.Nisha i.e., defendant No.1. Plaintiff No.1 is the husband of V.C.Beena, plaintiff Nos.2 to 4 are the children of plaintiff No.1 and V.C.Beena. She deposed that - 15 - NC: 2025:KHC:11070 RSA No. 173 of 2016 Jayakumar and Rajeev died as bachelors. After the demise of Mythili, the plaintiffs and defendant No.1 have succeeded to the suit schedule property belonging to Mythili. Mythili died on 18.11.2008. The plaintiffs requested defendant No.1 to effect a partition, but defendant No.1 instead of effecting a partition, sold the suit schedule property in favour of defendant No.2 and also started claiming that Jayakumar executed a registered Will in favour of defendant No.1 and he became the absolute owner of the suit schedule property. It is also deposed that the plaintiffs issued a legal notice calling upon defendant No.1 to effect a partition, but defendant No.1 replied to the legal notice on untenable grounds. 9. The plaintiffs, to prove that the suit schedule properties were owned and possessed by Mythili, have produced the documents. Ex.P1 is the certified copy of the registered sale deed, which discloses that Mythili had purchased the suit schedule property in 1983. Ex.P2 is the death certificate of Jayakumar, who passed away on - 16 - NC: 2025:KHC:11070 RSA No. 173 of 2016 23.08.2005, he died at Ernakulam. Ex.P3 is the death certificate of Mythili , who died on 18.11.2008 at Kannur, Ex.P4 is the legal notice dated 06.06.2009 issued by plaintiff No.1 to defendant No.1 calling upon the defendants to effect a partition. Ex.P5 is another legal notice issued to defendant No.1 by plaintiff No.2 on 24.05.2011, Ex.P6 is the copy of the reply notice, issued by defendant No.1 to the legal notice dated 24.05.2011 issued by plaintiff No.2, wherein it is stated that Mythili was the title holder of the property described in the notice, and thereafter she gave a part of the property to defendant No.1, and remaining portion to Jayakumar, who is the brother of defendant No.1. Jayakumar got the absolute title over the property. During his lifetime, he executed the Will in favour of defendant No.1 on 23.08.2005. On the strength of the Will executed by Jayakumar in favour of defendant No.1, defendant No.1 has become the absolute owner of the suit schedule property. Ex.P7 is the copy of the RTC extract regarding the land bearing Sy.No.4/3 which stands in the name of - 17 - NC: 2025:KHC:11070 RSA No. 173 of 2016 defendant No.1. Exs.P8 and 9 are the RTC extracts. Ex.P10 is the discharge card which discloses that Mythili was got admitted to the District hospital, Kannur. Ex.P11 is the prescription, wherein the doctor of District Hospital, Kannur prescribed the medication to Mythili, Ex.P12 is the certified copy of the mutation extract, which discloses that based on the Will, the name of defendant No.1 was entered in the revenue records, Ex.P13 is the discharge summary issued by Koyili hospital, Kannur, about Jayakumar who was admitted to the hospital on 29.07.2004, and discharged on 03.08.2004. Ex.P14 is the certificate issued by the Koyili Hospital, Kannur, wherein said hospital referred Jayakumar to Amritha Institute of Medical Science, Kochi, for higher treatment. 10. During the course of cross-examination, it was suggested to PW.1 that Jayakumar purchased the suit schedule property in the name of Mythili, and he paid the consideration amount. Mythili had transferred the property in favour of Jayakumar, and based on the - 18 - NC: 2025:KHC:11070 RSA No. 173 of 2016 statement given by Mythili, the property was transferred in the name of Jayakumar. The said suggestion was denied by PW.1. It was also suggested that Jayakumar bequeathed the suit schedule property in favour of defendant No.1 by executing the registered Will. The said suggestion was also denied by PW.1. 11. On the other hand, defendant No.1 examined himself as DW.1 and he deposed that the suit schedule property was purchased by Jayakumar in the name of Mythili and she has transferred the property in the name of Jayakumar. Jayakumar had bequeathed the suit schedule property in favour of defendant No.1 by executing the registered Will and after Jayakumar’s demise, defendant No.1 became the absolute owner of the suit schedule property by virtue of a registered Will. He also deposed that based on the Will, revenue authorities have entered the name of defendant No.1 and further, Smt. Mythili stated before the revenue authorities stating that she had transferred the property in the name of - 19 - NC: 2025:KHC:11070 RSA No. 173 of 2016 Jayakumar. Jayakumar had executed the Will bequeathing the suit schedule property in favour of defendant No.1, and defendant No.1 became the absolute owner of the suit schedule property. 12. Further, to prove the defense, the defendants have produced the documents where Ex.D1 is the original registered Will executed by Jayakumar in favour of defendant No.1. Ex.D2 is the affidavit sworn by Mythili, wherein she has stated that she is the permanent resident of the address shown above. It is stated that her son late V.C.Jayakumar got landed immovable property in Sy.No.414/2 measuring 1.27 acres and Sy.No.414/2 part measuring 1.39 acres and in Sy.No.414/3 measuring 4 acres of land situated at Hebbadi village of Srirangapatna and her son Jayakumar died on 23.08.2005. Before the death of V.C. Jayakumar, he bequeathed the properties in the name of his sister, i.e., defendant No.1, as per the registered Will. Ex.D3 is the Voters Identity card of defendant No.1, Ex.D4 is the certificate issued by the - 20 - NC: 2025:KHC:11070 RSA No. 173 of 2016 Tahsildar, which discloses that Mythili has no income of her own in Kannur taluk, Ex.D5 is the certificate issued by the Tahsildar which discloses that the lands were under the possession of late Vengappatta Kunnathur Kumar husband of Smt. N.C.Mythili till he had sold land bearing R.S.Nos.533, 534 and 946, Ex.D6 is the letter of SBM, Exs.D7 and 8 are the land revenue receipts regarding land in Sy.No.414/2 and 414/3, Ex.D9 is the patta book, which discloses that V.C.Jayakumar made a Will in favour of defendant No.1, Ex.D10 is the patta book of land bearing Sy.Nos.414/2 and 414/3 and the properties stood in the name of Jayakumar, Ex.D11 is the Bank pass book, wherein defendant No.1 is owning account in the co- operative Bank, Ex.P12 is also pass book of Pandavapura Sugar Factory Limited in the name of defendant No.1, Ex.D13 is the RTC extract of land bearing Sy.No.414/3 which stands in the name of defendant No.1, Ex.D14 is the RTC extract of land bearing Sy.No.414/3 which stands in the name of defendant No.1, Exs.D15 and 16 are the mutation extracts, which discloses that the properties - 21 - NC: 2025:KHC:11070 RSA No. 173 of 2016 were transferred in the name of Jayakumar, and later it was transferred in the name of defendant No.1, Ex.D17 is the form No.21, Ex.D18 is the genealogical tree, Ex.D19 is the report of Village Accountant, Exs.D20 to 22 are the mutation extracts, Ex.D23 is the copy of the notice issued to defendant No.1 by the Sub Court, Kannur, wherein Manikkoth Balakrishnan and others have filed an appeal against C.H.Sarojini and others in A.S.No.429/2012, Ex.D24 is the copy of the memorandum of appeal in A.S.No.429/2012, Ex.D25 is the copy of the review petition in R.P.No.3812/2010 filed in O.S.No.8/2003, Ex.D26 is the copy of the judgment passed in O.S.No.327/2010, Ex.D27 is the copy of the decree passed in O.S.No.327/2010, Ex.D28 is the copy of the written statement filed in O.S.No.327/2010, Ex.D29 is the copy of the registered sale deed executed by defendant No.1 in favour of defendant No.2 regarding the suit schedule property, Ex.D30 is the mutation extract which discloses that based on Ex.D29, the suit schedule property was mutated in the name of defendant No.2, Exs.D31 and 32 - 22 - NC: 2025:KHC:11070 RSA No. 173 of 2016 are the RTC extracts of the suit lands in 414/2 and 414/3 which discloses that defendant No.2 is the owner and in possession of the suit schedule property, Ex.D33 is the patta book, Exs.D34 and 35 are the Kandaya receipts, Ex.D36 is the encumbrance certificate, Ex.D37 is the statement of Mythili given before the revenue authorities, Ex.D38 is the certified copy of the order passed by the Tahsildar. 13. During the course of cross-examination, it was suggested to DW.1 that Mythili had purchased the suit schedule property for valuable consideration, and the sale deed was executed in her name. Though it is denied that sale consideration was paid by Jayakumar while purchasing the suit schedule property by Mythili, it is denied that Mythili transferred the property in favour of Jayakumar. Further, it was suggested to Dw.1 that Jayakumar had not acquired any right, title or interest over the suit schedule property. Further, Jayakumar had no right to execute the registered Will in favour of - 23 - NC: 2025:KHC:11070 RSA No. 173 of 2016 defendant No.1, and the said suggestion was denied by DW.1. 14. Further, defendant No.2 examined himself as DW.2. DW.2 deposed that suit schedule property was owned and possessed by defendant No.1, as defendant No.1 became the absolute owner of the suit schedule property by Ex.D1. Defendant No.2, after verifying the records, had purchased the suit schedule property, and he is a bonafide purchaser for value without notice. Further, the defendants, to prove the execution of Ex.D1, have examined one attesting witness as DW.3, who deposed that Jayakumar executed the registered Will in favour of defendant No.1 on 13.09.2004 and his signature from the Will was marked as Ex.D1(a) and signature of V.C.Jayakumar was marked as Ex.D1(b) to (f). But, in the cross-examination, he stated that Jayakumar came to his house and took him to sign the Will at Ex.D1. 15. From the perusal of the oral evidence led by the parties, it is clear that Mythili had purchased the suit - 24 - NC: 2025:KHC:11070 RSA No. 173 of 2016 schedule property under the registered sale deed in 1983 as per Ex.P1, i.e., a certified copy of the registered sale deed. She became the absolute owner of the suit schedule property under Section 14(1) of the Hindu Succession Act, 1956. It is the case of defendant No.1 that Mythili transferred the suit schedule property in favour of Jayakumar. The defendant has not pleaded in the written statement how Mythili had transferred the suit schedule property in favour of Jayakumar, though Jayakumar's name was entered in the revenue records. Section 133 of the Land Revenue Act of 1964 envisages that entries have a presumptive value. However, it is necessary for the Court to scrutinize the surrounding circumstances, namely two important factors: firstly, the length of the time during which entry has been on record, the circumstances under which the entry came to be made and more importantly, the question as to whether there is a subsisting dispute with regard to the correctness of the entry. The Court is not required to mechanically accept whatever the revenue authorities have put down, - 25 - NC: 2025:KHC:11070 RSA No. 173 of 2016 particularly regarding the manner in which the entries are made and the manner in which they are changed. In this background, one needs to take serious note of the fact that entries in this case happen to be in the name of Jayakumar based on an oral settlement. 16. At the cost of repetition, defendant No.1 has not taken a contention in the written statement that Jayakumar had acquired the property in a family settlement between Mythili and Jayakumar. Further, merely Mythili made a statement before the revenue authorities is not ground, and further mere entries in the revenue records do not create any title and revenue documents cannot confer any title as held by the Hon’ble Apex Court. Though the defense of the defendant that Mythili transferred the said property in favour of Jayakumar under an oral settlement, the defendants have not examined any witnesses to establish that there was a oral family settlement between the parties. - 26 - NC: 2025:KHC:11070 RSA No. 173 of 2016 17. Merely on the basis of the entries found in the revenue records, the same is in contravention of Section 17(1)(b) of the Registration Act, and the law is settled by the Hon’ble Apex Court that based on the revenue records, there cannot be any decree or entry found in the revenue records will not create any title. Further, in view of the law laid down by the Hon’ble Apex Court in the case of UNION OF INDIA VS. IBRAHIMUDDIN AND ANOTHER reported in 2012 (8) SCC 148, wherein the Hon’ble Apex Court discussed about the admission as concerned. Admission made by the party, inconclusive, is a decisive factor in a case unless the other party successfully withdraws the same or proves it to be erroneous. Even if the admission is inconclusive it may operate as an estoppel in certain cases. About the title concerned, there must be the title to declare as an owner, and mere admission cannot be conclusive proof. 18. The defendant has failed to establish how Jayakumar acquired the property from Mythili. When Jayakumar had not acquired any title from Mythili, hence, - 27 - NC: 2025:KHC:11070 RSA No. 173 of 2016 the question of executing the registered Will bequeathing the suit schedule property in favour of defendant No.1 does not arise, even if Ex.D1 is taken into consideration, i.e., said will deed is executed without any authority as the Jayakumar had no title to execute the Will regarding the suit schedule property. Defendant No.1 failed to establish that Jayakumar had acquired the title, and defendant No.1, by Ex.D1, had not acquired any title. The sale deed executed by defendant No.1 in favour of defendant No.2 is illegal, and defendant No.2 had not acquired any title by the registered sale deed alleged to have been executed by defendant No.1 in favour of defendant No.2. Defendant No.2 is not a bonafide purchaser for a value without notice. 19. Learned counsel for the defendant has relied on the judgment of the Hon’ble Apex Court in the case of DIGAMBAR ADHAR PATIL (referred supra), wherein the Hon’ble Apex Court held that the entries in the revenue records are proof of factum of partition the relevancy of - 28 - NC: 2025:KHC:11070 RSA No. 173 of 2016 documentary evidence in support of oral evidence. Admittedly, in the instant case, defendant No.1 failed to establish how Jayakumar had acquired the title. If the revenue entries are based on an untrue piece of evidence that has no evidential value in the civil cases as per the law laid by the Hon’ble Apex Court in the case of DAYARAM & OTHERS VS. DAWALATSHAH & OTHERS reported in AIR 1971 SC 681. 20. Admittedly, the mutation extract produced by the defendant is not supported by any piece of evidence. In view of the law laid down by the Hon’ble Apex Court in the case of Dayaram & Others (referred supra), wherein the Hon’ble Apex Court held in para No.21, reads as follows: that for Dayaram urged 21. Counsel the Compensation Officer had decided by his Order, dated August 30, 1951, that Compensation in respect of the Malguzari land was payable to Dayaram and since no suit was filed by the plaintiffs for setting aside that decision, the order of the Compensation Officer became final and conclusive and could not be reopened in a suit filed more then six years after that date. We are unable to accept that contention. The Compensation Officer is entitled - 29 - NC: 2025:KHC:11070 RSA No. 173 of 2016 in a summary inquiry held by to decide a question only regarding the proprietary right in the property divested under Section 3. He is not concerned with determination of any question relating to private dispute between two or more persons who make competing claims in the matter of compensation, relying upon their respective titles. A question regarding the proprietary rights may in ordinary course be raised only in a claim against the State, and if that claim be decided against the claimant the Compensation Officer, a suit to set aside the decision must be filed within two months from that date and if no suit is filed, the order becomes final and conclusive. Section 14 was enacted with a view to put an end to disputes with regard to the claims to proprietary rights which by virtue of the notification issued under Section 3 are extinguished. It is not intended by an order under Section 14 to determine complicated questions of title by the adjudication of a revenue officer in a summary inquiry without even a right of appeal and to make his adjudication conclusive unless a suit be filed within two months from the date of the order. That is also clear from the terms of Section 35(7) of Act 1 of 1951 which provides: “The payment of compensation under this Act to the creditors of a by proprietor or to the proprietor in accordance with the prescribed manner shall be a full discharge of the State Government from all liability to pay compensation for the divesting of proprietary rights, but shall not prejudice any rights in respect of the said rights to which any other person may be entitled by due process of law to enforce against the person to whom compensation has been paid as aforesaid.” - 30 - NC: 2025:KHC:11070 RSA No. 173 of 2016 The judgment relied upon by the learned counsel for the defendant in DIGAMBAR ADHAR PATIL (referred supra), does not apply to the case on hand. 21. The trial Court, considering the entire evidence on record, was justified in recording its finding that the plaintiffs are the legal representatives of the Mythili and they are entitled to a half share in the suit schedule property, and the trial Court has rightly declared that the plaintiffs are entitled to a half share in the suit schedule property. The first appellate Court, committed an error in dismissing the suit on the ground that defendant No.1 had acquired the title by Ex.D1, but the first appellate Court did not consider how Jayakumar had acquired the title and without considering the said aspect, passed the impugned judgment. The impugned judgment passed by the first appellate Court is arbitrary and erroneous, and the same is liable to be set aside, though the first appellate Court has passed the judgment in compliance with Order 41 Rule - 31 - NC: 2025:KHC:11070 RSA No. 173 of 2016 31 of CPC. In view of the above discussion, I answer substantial questions Nos.1 to 4 in the negative. 22. Accordingly, I proceed to pass the following:
Decision
ORDER i. The appeal is allowed; ii. The judgment and decree passed in R.A.No.5018/2015 dated 18.11.2015 by the III Additional District and Sessions Judge, Mandya, sitting at Srirangapatna, is set aside; and iii. The judgment and preliminary decree passed in O.S.No.79/2011 dated 07.03.2015 on the file of learned Principal Senior Civil Judge and JMFC, Srirangapatna, is restored. No order as to the costs. In view of the disposal of the appeal, pending IA, if any, does not survive for consideration, and is accordingly disposed of. SKS Sd/- (ASHOK S.KINAGI) JUDGE