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WP No. 339 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 4TH DAY OF JANUARY, 2024

BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 339 OF 2024 (GM-CPC)
BETWEEN:

1. MRS BHAGYAMMA,
D/O LATE MR.GANGAMASHTHAIAH &
LATE MRS.GANGAHANUMAKKA (1ST WIFE),
W/O LATE MRS.HANUMANTHARAYAPPA,
AGED ABOUT 53 YEARS,
R/A HOSAPALYA VILLAGE,
MODALAKOTE POST,
NELAMANGALA TALUK,
BENGALURU DISTRICT-562 123.

2 MRS. BYRAMMA (2ND WIFE)

W/O LATE GANGAMASTHAIAH,
AGED ABOUT 65 YEARS,
R/A HUNNIGERE VILLAGE,
DASANPURA HOBLI,
SONDEKOPPA POST,
BENGALURU NORTH TALUK,
BENGALURU RURAL DISTRICT-562123.
Digitally
signed by
VANDANA S 3 MRS.RUDRAMMA @ SUJATHA
Location: D/O LATE MR.GANGAMASTHAIAH &
HIGH MRS. BYRAMMA,
COURT OF
KARNATAKA W/O GOPAIAH,
AGED 48 YEARS,
R/A #69 NEAR GOVT.,
JUNIOR COLLEGE, JAKKASANDRA,
RAJAPPA LAYOUT,
NELAMANGALA TOWN,
BENGALURU RURAL DISTRICT-562 123.
…PETITIONERS
(BY SRI. ARNAV A BAGALWADI., ADVOCATE)
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WP No. 339 of 2024

AND:

1. MRS GANGAMMA
D/O LATE MR.THIMMAIAH,
W/O LATE MR.KEMPAIAH,
AGED ABOUT 73 YEARS,
R/A GOVENAHALLI VILLAGE,
THYAMAGONDLU HOBLI,
KULUVENAHALLI POST,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562 123.

2. MRS. RUDRAMMA,
D/O LATE THIMMAIAH,
W/O LATE MR.MUDDAIAH,
R/A HOSAPALYA VILLAGE,
KASABA HOBLI, MODALAKOTE POST,
NELAMANGALA TALUK,
BENGALURU RURAL DISTRICT-562 123.
…RESPONDENTS
(BY SRI. DEVARAJU.K., ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE

CONSTITUTION OF INDIA, PRAYING TO DIRECTION TO SET ASIDE
THE ORDER DATED 29/09/2023 IN O.S. NO. 25/2018 PASSED BY
THE LEARNED SENIOR CIVIL JUDGE AND JMFC, NELAMANGALA, A
COPY OF WHICH IS HEREIN PRODUCED AS ANNEXURE C AS
ILLEGAL AND VOID, ETC.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE

COURT MADE THE FOLLOWING:

ORDER

1. This petition is directed against the impugned order dated

29.09.2023 passed in O.S. No.25/2018 by the Senior Civil Judge &

JMFC, Nelamangala, (hereinafter referred to as, ‘Trial Court’, for

short) whereby the alleged document styled as ‘partition deed’

dated 20.02.1957 was not permitted to be marked as an exhibit in

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evidence on behalf of the petitioners on the ground that the same

was an unregistered document.

2. Heard learned counsel for the petitioners and learned

counsel for the respondents.

3. A perusal of the material on record indicates that the

respondents No.1 and 2 – plaintiffs instituted the aforesaid suit

against the petitioners / defendants for partition and separate

possession of their alleged share in the suit schedule properties.

The said suit is being contested by the petitioners / defendants.

After completion of the evidence of the respondents / plaintiffs, the

petitioner No.1 examined herself as D.W.1 and during the course of

her evidence, she intended to mark alleged document dated

20.02.1957 styled as ‘partition deed’ as an exhibit on her behalf.

The marking of the said document and admission of the same in

evidence was opposed by the respondents / plaintiffs, who inter

alia contended that the same was an out and out partition deed

and not palu patt and since right, title and possession in immovable

properties were created under the very same document which was

not a record of a past partition, the document was compulsorily

registrable under Section 17(2)(viii) of the Registration Act, 1908

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(hereinafter referred to as ‘the Act’, for short) read with the proviso

to Section 49 of the said Act. It was also contended that the

Explanation to Section 6(5) of the Hindu Succession Act, 1956

permits only a registered partition to be introduced in evidence for

the purpose of proving earlier partition and also preventing the

female co-parceners pursuant to the amendment to Hindu

Succession Act of the year 2005 from claiming any share in the

properties.

4. Per contra, the learned counsel for the petitioners /

defendants contended that the said document was not a partition

deed and was in the nature of palu patti and it did not require any

registration.

5. After hearing both the sides, the Trial Court proceeded to

pass the impugned order refusing to permit the petitioner - D.W.1

to mark the said documents in evidence on behalf of the

petitioners, who are before this Court by way of the present

petition.

6. A perusal of the impugned order passed by the Trial Court

indicates that various contentions urged by both sides as regards

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admissibility or otherwise of the said document dated 20.02.1957

has been elaborately dealt with by the Trial Court at the stage of

marking, which is contrary to the law laid down by the Apex Court

in the case of Bipin Shantilal Panchal vs. State of Gujarat &

Another reported in AIR 2001 SC 1158 and followed by this Court

in the case of Chikka Narasappa and Others vs. Venkatamma

and Others reported in ILR 2015 KAR 907.

7. Under these circumstances, I am of the considered opinion

that the Trial Court committed an error in deciding the issue /

question regarding admissibility at the stage of marking itself and

since objections had been raised by the respondents / plaintiffs

regarding the admissibility of the said document, the said issue

could have been postponed by the Trial Court to be decided at the

time of the final disposal of the suit, in terms of the procedure laid

down by the Hon’ble Apex Court in the case of Bipin Shantilal

Panchal (supra). At any rate, since the Trial Court will necessarily

have to deal with the issue / question of the admissibility of the

document dated 20.02.1957 along with other issues / questions

that arise for consideration, no prejudice would be caused to the

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respondents if that issue is kept open to be decided in accordance

with law at the time of the final disposal of the suit.

8. In the result, the following :

ORDER

i) The petition is hereby allowed.

ii) The impugned order is hereby set aside.

iii) The Trial Court is directed to permit the petitioner

No.1 (D.W.1) to effectively mark the document dated

20.02.1957 as an exhibit in her evidence.

iv) All rival contentions regarding admissibility, proof,

execution, relevance, probative value, etc., of the said

document are kept open to be decided by the Trial

Court at the time of final disposal of the suit and no

opinion is expressed on the same.

v) The Trial Court is directed to mark the said document

as an exhibit, as stated supra, and proceed further to

adjudicate upon the suit in accordance with law.

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vi) Since the suit is of the year 2018, the Trial Court is

directed to dispose of the suit within a period of one

year from the date of receipt of a copy of this order.

Sd/-
JUDGE

HNM
List No.: 1 Sl No.: 32