BHAN J. - (1.) LEAVE granted in special leave petition (C) No. 1111 of 2000.
(2.) BARE essential facts, set out hereinafter, would in our opinion, be sufficient to appreciate the crux of controversy arising for the decision in these appeals. 2.1 Genealogy of the members of the family amongst whom the present dispute arises is as under: JUDGEMENT_17_JT6_2004Image1.jpg 2.2 Plaintiffs - respondents (hereinafter referred to as the 'respondents') belonging to the branch of Rangappa son of Nanjappa, filed suit O. S. NO. 3 of 1972 in the court of the civil judge, Shimoga for partition and separate possession of half a share of the suit schedule properties, on the ground that properties belong to the Joint Hindu Family of two branches of Shivalingappa and Rangappa. The branch of Mahadevappa son of Dyamappa was not made party in the original suit initially, even though the properties in their hands were also included in the schedule of properties. Maheswarappa and Shivalingappa(lll), sons of Mahadevappa from the other branch were later on added as defendant nos. 6 and 7. Since name Shivalingappa appears at three places they would be referred to as Shivalingappa-(l), Shivalingappa-(ll) and Shivalingappa-(lll) for the sake of clarity. 2.3 Appellants herein belonging to the branches of Shivalingappa-(lll) represented by defendant nos. 1 to 5 and Maheswarappa, i.e. defendant nos. 6 and 7 contested the suit and filed the written statements. Defendant nos. 1 to 5, the appellants herein, pleaded that the partition of the properties had already been effected of the Joint Hindu Family properties under the partition deed dated 15.11.1916. It was averred that there was a partition of properties in the family of Nanjappa recorded on 15.06.1916 between the two branches of Kariyappa and Dyamappa as represented by Shivalingappa-(l) and Nanjappa sons of Kariyappa on the one hand and Mahadevappa representing the branch of Dyamappa on the other hand. The Joint Family properties were located in villages Arasinagatta and Kabbala. Shivalingappa-(ll)'s branch got the properties at Kabbala and the other two branches shared the properties at Arasinagatta. Shivalingappa's branch shifted to Kabbala village which is at a distance of about 10 kilometres from Arasinagatta. Nanjappa's and Dyamappa's families continued to live at village Arasinagatta. Trial court by its judgment and decree dated 22.09.1979 dismissed the suit and accepted the case of the defendants-appellants, to the effect that there was a partition in the year 1916 and as such the plaintiffs-respondents were not entitled to seek division of the properties. The regular appeal, RA No. 22 of 1989, filed before the court of additional district judge, Shimoga by plaintiffs-respondents was dismissed on 12.08.1992. The first appellate court rejected the appeal, inter alia, on the findings that: there was a prior partition in the Joint Family of Nanjappa amongst the three branches of Shivaligappa-(ii), Rangappa and Mahadevappa. The document of 1916 itself shows that there was already a division of properties and severance of status in the joint family of the three branches. Partition amongst Hindus can be oral but if the partition is recorded by instrument in writing it is required to be registered under section 17 (1)(b) of the India Registration Act, 1908 though unregistered document could be relied upon to establish the severance of status in the Joint Family. That the oral and documentary evidence on record established separate possession and enjoyment of the properties that had fallen to the shares of three branches by their respective owners. That Rangappa and Mahadevappa had divided the original house which had fallen to their shares at Arasinagatta and were living in the two portions separately. Similarly in respect of the agricultural lands also the branches of Mahadevappa and Rangappa were cultivating equal portions by paying kandayam (taxes) separately. The appellate court also found, on a detailed examination of the evidence that the parties to the suit, namely, the plaintiffs as well as the branches of defendants had purchased and disposed of several properties independently. That the parties had been paying assessment separately and the khata entries also indicated that the properties stood in their names separately. The compensation amount received for acquisition of lands had been distributed amongst the two branches, i.e. plaintiff and defendant nos. 6and7.
(3.) AGGRIEVED against the judgments and decrees passed by the courts below, plaintiffs-respondents filed second appeal in the High Court which was numbered as R. S. A. No. 918 of 1992. The second appeal was admitted on the following substantial question of law: "Whether the courts below were justified in holding that exhibit D-101 is admissible as a deed of partition, without its being registered?" The High Court observed that if the answer to this question is in negative then the suit has to be decreed as prayed for, granting a decree for partition and if the answer to the question is in affirmative then the dismissal of the suit by the court below has to be confirmed. Learned single judge also recorded in his order that there was no request made before court either to reframe the question or to frame any other question as contemplated under section 100, CPC.;