Holding

An unregistered panchayat resolution can be used as corroborative evidence of a family settlement, the third parcel remains joint family property, and all four plaintiffs and the defendant are entitled to an equal one‑fifth share in it, leading to reversal of the lower courts' findings on parcels 1 and 2.

Summary

The suit sought partition of three parcels of land that were part of the joint family of the deceased Narayana. The defendant claimed that the first two parcels had been relinquished by the plaintiffs through a village panchayat resolution and receipts, while the third parcel was his self‑acquired property. The trial court and High Court held that, because the relinquishment documents were unregistered, the plaintiffs retained their shares in the first two parcels and also in the third parcel. On appeal, the Supreme Court examined whether an unregistered panchayat resolution could be admitted as corroborative evidence of a family settlement and whether the third parcel was joint family property. It held that such a resolution, though unregistered, may be used to explain the parties' conduct, and that the third parcel was not self‑acquired but part of the family estate. Consequently, the lower courts' findings on parcels 1 and 2 were set aside and all four plaintiffs and the defendant were each allotted a one‑fifth share in parcel 3. The appeal was partly allowed.

Issues considered

The admissibility and evidentiary value of an unregistered village panchayat resolution as proof of relinquishment of rights in joint family property.
Whether documents required to be registered under the Registration Act can be admitted as evidence under the Evidence Act.
Whether the third parcel of land is self‑acquired property of the defendant or part of the joint family property.
Whether plaintiffs 1 and 2 relinquished their rights in the third parcel.
Whether the lower courts erred in ignoring oral and documentary evidence concerning the status of the properties.

Legislation cited

Subjects

partitionjoint family propertyfamily settlementpanchayat resolutionregistration actevidentiary valueArticle 136self‑acquired propertyshare entitlement

Judgment

924 [2016] 5 S.C.R. 924

A SUBRAYA M.N.
v.
VITTALA M.N. & ORS.
(Civil Appeal No. 5805 of2016)
B JULY05,2016
[KURIAN JOSEPH AND R. BANUMATHI, JJ.]
Partition - Suit by plaintiffs (brothers of the defendant) - For
partition of suit schedule property at Item Nos. 1,2 and 3 which was
ioint family property - Alleging that the defendant was attempting
c to grab the suit properties - In the Written Statement defendant stated
that Plaintiff Nos. 1 and 2 had sold their shares to the defendant
and the plaintiff Nos. 3 and 4 had also relinquished their rights in
the Item Nos. 1 and 2 and the same was recorded in Panchayat
Resolution (Exb. D22); that Item No. 3 was his self-acquired property
D and thus plaintiffs were not entitled to partition - During trial,
plaintiff Nos. I and 2 stated in the court that they had no claim over
item Nos. 1 and 2 - Trial court decreed the suit holding that plaintiff
Nos. 3 and 4 were entitled to J/3rd share each in item Nos. 1, 2 -
They cannot be said to have relinquished their rights by Exbt-22 or
the receipts Exbts. Dl4 and D23, as there can be no relinquishment
E
without registered document - High Court affirmed the decree - On
appeal, held: Courts below have erred in ignoring the oral and
documentary evidence regarding Item Nos. 1 and 2 of suit scheduled
property - There was a division in status of the defendant and
plaintiffs so far as item Nos. 1 and 2 are concerned and the same
F was affirmed by the Panchayat by its resolution Exbt. D-22 - The
Panchuyat resolution ( a written document) though not registered,
can be used as a corroborative piece of evidence explaining the
family settlement and the conduct of the parties in receiving the
money in lieu of relinquishing their interest in item Nos. 1 and 2 -
So far as ite.m No. 3 of the suit schedule property is concerned, the
G
defendant failed to prove that the property was his self-acquired
property and not the joint family property - Thus, plaintiff Nos. 3
and 4 were entitled to share in Item No. 3 - It is evident from the
evidence that plaintiff Nos. 1 and 2 have relinquished their rights
only in respect of item Nos. 1 and 2 and not in respect of item No. 3
H
924
SUBRAYA M.N. v. VITTALA M.N. & ORS. 925

- Therefore, they are also entitled to their share in item No. 3 - thus, A
all the plaintiffs are entitled to J/5th share each in item No. 3.
Constitution of India - Art. 136 - Jurisdiction under - Scope
of - Held: Jurisdiction u/Art. 136 is to be exercised sparingly and
only in furtherance ofjustice - But the court would interfere where
the courts below have unappreciated the evidence and ignored the B
weight of evidence and the findings suffer from perversity.
Registration Act, 1908 - ss. 17 and 49 - Unregistered document
-As regards family arrangements in respect of immovable properties
- Evidentiary value of - Held: Binding family arrangements in
respect of immoiable property worth more than Rupees hundred, c
can be made orally and when so made, no question of registration
arises - But if such arrangement is reduced to writing, it requires
registration and without registration it is inadmissible in evidence -
However, it can be used as a corroborative piece of evidence -
Evidence Act, 1872 - s. 91.
D
Partly allowing the appeal, the court
HELD: 1.1 Power under Article 136 of the Constitution of
India is to be exercised sparingly and only in furtherance of justice.
But where both the courts have mis-appreciated the evidence
and ignored the weight of evidence on record and findings suffer E
from perversity, this Court would certainly examine whether the
findings are consistent with facts and evidence on record and
interfere with the conclusion. In the present case, courts below
erred in ignoring the oral and documentary evidence adduced by
the defendant regarding item Nos.1 and 2 and the findings of the
courts regarding item Nos.1 and 2 are palpably erroneous 'and F
the same is to be reversed. [Para 21] [935-G-H; 936-B]
1.2 Under Section 17 of the Registration Act, the documents
which purport or operate to create, declare, assign, limit or
extinguish any right, title or interest of the value of one hundred
rupees and upwards, are to be registered. Under Section 49 of G
the Registration Act, no document required by Section 17 or by
any provision of the Transfer of Property Act to be registered
shall be received as evidence of any transaction affecting an
immovable property. As provided by Section 49 of the
Registration Act, any docum.cnJ, which is not registered as
H
926 SUPREME COURT REPORTS [2016] 5 S.C.R.

A required under the law, would be inadmissible in evidence and
cannot therefore be produced and proved under Section 91 of
the Evidence Act. [Para 16] [933-E-F]
1.3 Even though recitals in the Ex.D22 (which is not a
registered document) is to the effect of relinquishment of right
B in items No.1 and 2, Ex.D22 could be taken as family
arrangements/settlements. There is no provision oflaw requiring
family settlements to be reduced to writing and registered, though
when reduced to writing the question of registration may arise.
Binding family arrangements dealing with immovable property
worth more than rupees hundred can be made orally and when so
c made, no question of registration arises. If, however, it is reduced
to the form of writing with the purpose that the terms should be
evidenced by it, it required registration and without registration
it is inadmissible; but the said family arrangement can be used as
corroborative piece of evidence for showing or explaining the
D conduct of the parties. In the present case, Ex.D22 panclzayat
resolution reduced into writing, though not registered can be
used as a piece of evidence explaining the settlement arrived at
and the conduct of the parties in receiving the money from the
defendant in lieu of relinquishing their interest in items No.1 and
2. [Para 17] [933-E-H; 934-A-B]
E 1.4 Money order receipts produced by plaintiffs No.3 and 4
show that they have sent money to the defendant. Money order
could have been sent by plaintiff Nos. 3 and 4 for maintenance of
their mother who used to reside with the defendant. In fact,
second plaintiff has stated that plaintiff Nos. 3 and 4 used to send
F small amount of money to their mother when they were in the
army. That being so, case of the plaintiff Nos. 3 and 4 that the
amount was sent only for development of land and construction
of the house ought not to have been accepted by the trial court
and the High Court. (Para 18] (934-F-H]
1.5 Even though the plaintiff Nos. 3 and 4 have retired from
G
the army in 1988 and 1989 respectively and were living separate,
they have not made any claim for partition. Their mother died in
1987. The defendant has made an application for grant of item
No.3 in his name in or about 1991, the tehsildar has issued
proceedings for regularization of item No.3 in the name of the
H defendant by his proceeding dated 08.12.1995. The defendant
SUBRAYA M.N. v. VITTALA M.N. & ORS. 927

has paid the T.T. fine of Rs.3489/- on 28.03.1996/31.05.1996. Only A
thereafter, the plaintiffs appear to have filed the suit for partition.
The conduct of the parties would also affirm that there was a
division in status of the defendant and the plaintiffs in so far as
item Nos. 1 and 2 are concerned which was affirmed in the
pancltayat. All these material facts and evidence were ignored
B
by the courts below and concurrent findings of courts on item
Nos. 1 and 2 is to be set aside. [Para 20) [935-D-F]
2.1 The defendant cannot claim that he had individually
encroached upon item No.3 of the suit schedule property even in
the year 1962 and was cultivating the same in his individual
capacity by his own exertion. Evidence amply shows that
c
possession and cultivation of item No.3 was by the family and
patta was granted in the name of the defendant who was running
the family affairs after death of his father and it is to be held that
the patt<t was granted for the benefit of the entire family. [Para
25) (937-C-D] D
2.2 There was division of status among the brothers, the
defendant and plaintiff Nos. 3 and 4 during the year 1995 or at
the time when the defendant paid Rs.20,000/- to plaintiffs No.3
.and 4 for relinquishment of their .interest in items No.1 and 2 or
on 18.03.1995 when before P"nc/wy"t resolution (Ex.D22) was E
passed. Appellant had given the application for grant of P"tta of
item No.3 in 1989 and the same was renewed in 1991 during
which time there was no division of status among the defendant
and plaintiff Nos. 3 and 4. Since the grant of item No.3 in the
. name of the defendant is for the benefit of the family, trial court
and the High Court rightly recorded the concurrent findings that F
the plaintiffs are entitled to the share in item No.3. [Para 26)
[937-E-G]
2.3 So far as the share of plaintiff Nos. 1 and 2 in item No.3,
by perusal of their evidence as CWs 1 and 2, it appears that they
have relinquished their interest only in item Nos. 1 and 2. Though G
in their evidence, plaintiff Nos. 1 and 2 have stated that they are
not interested in claiming share, they have not filed anything in
writing that their shares in item No.3 may be given to plaintiff
Nos. 3 and 4 and also the defendant. In such facts and
circumstances, plaintiff Nos. 1 and 2 are entitled to a share in H
928 SUPREME COURT REPORTS [2016] 5 S.C.R.

A item No. 3. Thus the plaintiffs and defendant are entitled to 1/5'"
share each in item No.3. However, at the time of final decree/
proceedings, it is open to plaintiff Nos. 1 and 2 to relinquish their
share in favour of either the defendant or plaintiff Nos. 3 and 4.
[Para 27] [937-H; 938-A, C-D)
B Gujarat Mineral Development Corporation v. P.H.
Brahmbhatt (1974) 3 SCC 601 : (1974) 2 SCR 128 -
referred to.
Case Law Reference
(1974) 2 SCR 128 referred to Para 21
c CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5805 of
2016.
From the Judgment and Order dated 20.03.2008 of the High Court
of Karnataka at Bangalore in R. F. A. No. 805/1998.
D Kiran Suri, Sr.Adv., S. J.Amith, Gautam Kumar, Dr. (Mrs.) Vipin
Gupta, Advs. for the Appellant.
Girish Ananthamurthy, Mrs. Vaijayanthi Girish, Advs. for the
Respondents.
The Judgment of the Court was delivered by
E
R. BANUMATHI, J. 1. Leave granted.
2. This appeal is preferred against the judgment dated 20.03.2008
passed by the High Court of Karnataka in R.F.A. No.805 of 1998
dismissing the appeal preferred by the appellant-defendant and thereby
confirming the judgment and decree for partition passed by the trial court.
F
3. Briefly stated the case of respondents-plaintiffs is as follows:-
The appellant-defendant and the respondents-plaintiffs are the sons of
one late Narayana. The suit scheduled property comprises of item No. I
bearing S.No.69/69 measuring 1.00 acre; item No.2 bearing S.No.69/70
measuring 0.25 acre and item No.3 bearing S.No.69/5C2 measuring
G
1.00 acre. Items No. I and 2 are the joint family property of late
Narayana. Narayana died in the year 1962. Plaintiffs No.3 and 4 were
working in the army and were sending money to the joint family and the
joint family affairs were run by the appellant-defendant. Respondents
No. 3 and 4 retired from the army in the years 1988 and 1989 respectively.
H House in item No.2 was constructed in the year 1980 from out of the
SUBRAYA M.N. v. VITTALA M.N. & ORS. 929
[R. BANUMATHI, J.]

joint family income and the contribution made by respondents No.3 and· A
4. Late Narayana was in possession of suit property itern No.3 and had
converted the same from forest land to a wetland and the same was
further developed from out of the joint family income and the contribution
made by respondents No.3 and 4. Respondents-plaintiffs averred that
taking advantage of absence ofthe plaintiffs, appellant filed an application
B
to the Tehsildar for grant of pat/a for item No.3-S.No.69/5C2 which
was opposed by the respondents. Alleging that the appellant is attempting
to grab the suit properties, respondents-plaintiffs filed the suit for partition ·
claiming I/5th share to each of them.
4. In the written statement, appellant-defendant claimed that so
far as items No. I and 2 are concerned, plaintiffs No. I and 2 have sold c
their sharcs-0.50 acre of land to the defendant and the third plaintiff as
per sale deed dated 28.04.1976 and plaintiffs· have no right to claim
partition in items No. I and 2. It is further averred that there was a
panchayat in the village on 18.03.1995 wherein plaintiffs No.3 and 4
and defendant participated and it was agreed between the parties that D
the defendant will give Rs.50,000/- to plaintiffs No. 3 and 4 and defendant
will have all rights over items No. I and 2. So far as suit property in item
No.3 is concerned, appellant-defendant claimed that he had encroached
··· the saidareaof 1.25 acre in S.No.69/5C2 in the year 1962 and converted
the same into wetland and applied to the Government to regularize his
encroachment. After enquiry, the revenue authorities have granted ·patta E
to the defendant and hence item No.3 is the self-acquired property of
the defendant and the plaintiffs have no right to claim any share.
5. On the above pleadings, trial court framed five issues. Plaintiffs
No. 3 and 4 were examined as PWs I and 2 and two more witnesses
were examined as PWs 3 and 4. Defendant examined himself as OW- F
I and examined four other witnesses. During the course of trial,
respondents No.I and 2-plaintiffs No. I and 2 were examined as CWs I
and 2 and they have stated that they have no claim or right in items No. I
~2. .
6. Upon consideration of evidence, trial court held that sale deed G
{Ex.013) dated 28.04.1976 is proved and the said sale is only by plaintiffs
No. I and 2 and not by plaintiffs No. 3 and 4 and they cannot be said to
have relinquished their right by virtue of resolution of panchayat or
receipts produced as Exs. D 14 and 023 as there can be no relinquishment
without any registered documents and on those findings held that plaintiffs· H
930 SUPREME COURT REPORTS [2016] S S.C.R.

A No.3 and 4 are entitled to I ;3rct share each in items No. I and 2. So far as
item No.3 is concerned, trial court held that the defendant has failed to
prove that the sum of Rs.3489/- paid by him towards the T.T. fine was
from out of his own income and held that the plaintiffs No.3 and 4 are
entitled to l/J'd share each in item No.3 also. '
B 7. Being aggrieved, the defendant preferred appeal before the High
Court in R.F.A. No.805 of 1998. Affirming the judgment of the trial
court, High Court held that in the absence of any conveyance deed, on
the basis ofExs. Dl4 and D23, it cannot be held thatthe share of plaintiffs
No.3 and 4 is transferred to the defendant. So far as item No.3 is
concerned, High Court held that the patta was granted in favour of the
c defendant after filing of the suit and the defendant has failed to prove his
independent income to pay the amount for grant of land and on those
findings dismissed the appeal filed by the appellant. Being aggrieved, the
appellant is before us.
8. Learned counsel for the appellant submitted that so far as items
D No. I and 2 are concerned, plaintiffs have forfeited their right after
receiving the money paid by the defendant and the courts below have
failed to appreciate the oral and documentary evidence. It was submitted
that courts below failed to appreciate that the item No.3 was developed
·and cultivated by the defendant, in recognition of which patta was granted
E by the Government to the defendant on 19.06.1997 and courts below
erred in treating item No.3 of the suit scheduled property as a joint family
property. It was submitted that item no.3 was never in the possession of
late Narayana and that patta had been granted to the defendant after
rejecting the objections made by plaintiffs No.3 and 4, which was not
properly appreciated by the High Court.
F
9. Per contra, learned counsel for the plaintiffs No. 3 and 4
contended that the appellant-defendant failed to discharge his burden of
proving that the plaintiffs have forfeited their shares in items No. I and 2
of the suit scheduled property. It was further contended that it.is brought
on evidence that item No.3 of suit scheduled property was in the
G possession of late Narayana who had developed the same and the
defendant cannot regard item No.3 as his self-acquired property. On behalf
of the plaintiffs, it was urged that the courts below have recorded
concurrent findings that plaintiffs No.3 and 4 are o.:ntitled to 1/)'d share
in each of the suit scheduled prop~rty and the said concurrent findings
H cannot be interfered with.
SUBRAYA M.N. v. VITTALA M.N. & ORS. 931
[R. BANUMATHI, J.]

10. We have carefully considered the rival contentions and perused A
the impugned judgment and material on record.
11. So far as the relationship between the parties is concerned, it is
not in dispute that the defendant and the plaintiffs are sons of late
Narayana. It is also available on record that N ar~1yana had two daughters
who are married and have not claimed any right with regard to the suit B
scheduled property. The mother of the plaintiffs died in the year 1987.
Plaintiffs No. I and 2 examined in the trial court as CWs I and 2 have
stated that they do not claim share in the suit properties. Consequently,
the dispute pertaining to partition of the suit scheduled property was
limited to plaintiffs No.3 and 4 and the appellant-defendant.
c
12. So far as item No. I in S.No.69/69 measuring 1.00 acre; item
No.2 in S.No.69/70 measuring 0.25 acre are concerned, plaintiffs No. I
and 2 have executed a registered sale deed (Ex.013) dated 28.04.1976
in favour of plaintiff No. 3 and the defendant and under the sale deed
they have sold their shares of 50 cents each (25 cents+ 25 cents). So
far as plaintiffs No.3 and 4 are concerned, case of the defendant is that 0
plaintiffs No.3 and 4 agreed to receive a sum ofRs.50,000/- in lieu of
their shares in items No. I and 2 of the suit scheduled property. Defendant
had produced Ex.014 (dated 19.05.1995) executed by plaintiffNo.3 for
Rs.20,000/- in favour of the defendant and Ex.023 (dated 12.12.1994)
said to have been e)\ecuted by plaintiffNo.4 in favour of the defendant E
in lieu of his share in the property items No. I and 2. In his evidence,
defendant-OW-I stated that a panchayat was held in the village on
18.03.1995 in which plaintiffs No. 3 and 4 and defendant participated
and a resolution (Ex.022) was passed in the panchayat. Ex.022 is the
resolution of the village panchayat which is signed by panchayatdars,
defendant and plaintiffs No.3 and 4 in the presence of panchayatdars. F
The said resolution reads as under:-
"
It has been decided that Subraya will be given the residential house
and 40 cents of coffee estate being the shares of Gopal and 0
Lingappa agreed to be sold absolutely to Subraya at Rs.50,000/-
each. Out of the amount ofRs.20,000/- has already been paid by
Subraya to Gopal and Lingappa and remaining amount of
Rs.30,000/- is agreed to be paid by Subraya in two installments
i.e. at Rs.15,000/- each and the I st instalment of Rs.15,000/- will
H
932 SUPREME COURT REPORTS [2016] 5 S.C.R.

A be paid before 30.4.1996 to the said Gopal and Lingappa and can
obtain receipt therefor and the balance of Rs.15,000/- is agreed
to be paid by Subraya on 15.04.1997 along with the bank rate of
interest that is to say, effective from 18.03.1996 to be discharged
through the panchayat and obtain necessary receipt for the same.
Go pal and Lin gap pa have relinquished their rights over the property
B and handed over the same to Subraya today itself. If the parties
to this proceedings do not perform their part of contract and fail
to act, they wi II held liable and responsible for the consequences.
Subraya will have all the rights over the property and the house
henceforth and enjoy the same and the Gopal and Lingappa agree
c to cooperate with Subraya in perfecting his title."
Case of the defendant is that the panchayat resolution has been
acted upon and that the defendant has paid a sum ofRs.15,000/- each to
plaintiffs No.3 and 4.
13. To substantiate his plea that there was a panchayat in which
0 plaintiffs No.3 and 4 have relinquished their rights in items No. I and 2 of
the suit properties, defendant has examined C.O. Annaiah (OW-2) who
deposed that the plaintiffs No.3 and 4 have received money from the
defendant in respect of items No.I and 2. He further stated that as per
the panchayat resolution Ex. 022, defendant had also paid a sum of
E Rs.15,000/-to each of the plaintiffs. OW-3-Belliyappa who is the brother-
in-Jaw of the plaintiffs and defendant i.e. husband of their sister by name
Poovamma has stated about the panchayat and that money was paid by
the defendant to plaintiffs No.3 and 4 and third plaintiff signed the receipt
(Ex.014) and Ex.023 is the receipt pertaining to plaintiffNo.4 and he
has not signed in the receipt.
F
14. Defendant has also examined OW-4-C.B. Muthappa who is
the Chairman of the Kanoor Village Panchayat had deposed that the
panchayat was held between the parties regarding dispute in respect of
the suit property items No. I and 2. He had produced Ex.034-resolution
book of the panchayat containing the original resolution Ex.022 dated
G 18.03.1995.
15. Considering the plea ofrelinquishment of their right by plaintiffs
No.3 and 4 in items No. I and 2, after referring to Ex.022 resolution and
the oral evidence, trial court as well as the High Court held that in the
absence of any conveyance deed Exs.O 14, 023 and 022, it cannot be
H
SUBRAYA M.N. v. VITTALA M.N. & ORS. 933
[R. BANUMATHI, J.]

established that plaintiffs No. 3 and 4 have forfeited their rights in respect A
of items No. I and 2 of the suit scheduled property. Courts below llttve
recorded findings that even though Ex.O 14 bears signature of plaintiff
No.3, Ex.023 does not bearthe signature ofplaintiffNo.4. It was further
held that those two receipts do not indicate that the amount has been
received by plaintiffs No.3 and 4 in lieu of their shares in items No. I and
B
2 of the suit scheduled property and mere production of Ex.O 14 and
Ex.023 receipts are not helpful to the appellant-defendant to contend
that plaintiffs No.3 and 4 have forfeited their rights in respect of their
shares in items No. I and 2. Even though Exs. 014 and 023 do not
contain the survey number, as noticed earlier, Ex.022 panchayat
resolution refers to suit scheduled property items No. I and 2 in S. No.69/ c
69 measuring 1.00 acre and S.No.69/70 measuring 0.25 acre and that
amount ofRs.20,000/- has already been paid by the defendant to plaintiffs
No.3 and 4. As pointed out earlier, Ex.022 resolution is signed by the
plaintiffs No.3 and 4 and also by the panchayatdars. In our considered
view, the trial court as well as the High Court was not right in brushing
0
aside the oral and documentary evidence adduced by the defendant to
prove that plaintiffs No.3 and 4 have relinquished their right in items
No. I and 2 of suit scheduled property.
16. Under Section 17 of the Registration Act, the documents which
purport or operate to create, declare, assign, limit or extinguish any right,
title or interest of the value of one hundred rupees and upwards, are to E
be registered. Under Section 49 of the Registration Act no document
required by Section 17 or by any provision of the Transfer of Property
Act to be registered shall be received as evidence of any transaction
affecting an immovable property. As provided by Section 49 of the
Registration Act, any document, which is not registered as required under F
the law would be inadmissible in evidence and cannot therefore be
produced and proved under Section 91 of the Evidence Act.
17. Even though recitals in the Ex.022 is to the effect of
relinquishment of right in items No. I and 2, Ex.022 could be taken as
family arrangements/settlements. There is no provision of law requiring G
family settlements to be reduced to writing and registered, though when
reduced to writing the question ofregistration may arise. Binding family
arrangements dealing with immovable property worth more than rupees
hundred can be made orally and when so made, no question of registration
arises. If, however, it is reduced to the form of writing with the purpose
H
. ·- 934 SUPREME COURT REPORTS [2016] 5 S.C.R.

A that the terms should be evidenced by it, it required registration and
without registration it is inadmissible; but the said family arrangement
can be used as corroborative piece of evidence for showing or explaining
the conduct of the parties. In the present case, Ex.022 panchayat
resolution reduced into writing, though not registered can be used as a
piece of evidence explaining the settlement arrived at and the conduct
B
of the parties in receiving the money from the defendarit in lieu of
relinquishing their interest in items No. I and 2.
18. Plaintiffs have denied the contention of the defendant that
plaintiffs No.3 and 4 have received consideration from the defendant in
lieu of relinquishing their claim for items No. I and 2 of the suit scheduled
c property. Contention of the plaintiffs is that all the brothers have cultivated
the suit property and have contributed towards the development of the
land belonging to their family and also contributed forthe construction of
the house in item No.2 of the suit property. PlaintiffNo. 3 had produced
Ex.PS to P-29-M.0. receipts and acknowledgment cards showing that
D the defendant received the amount sent under the money order in the
name of the defendant. Fourth plaintiff-Gopal had also deposed to the
same effect that he has not forfeited his claim in items No. I and 2 of the
suit scheduled property and he has contributed in the construction of the
house in item No.2 of the suit scheduled property. PlaintiffNo.4-Gopal
has also produced money order receipts Exs.P-33 to P-36 to show that
E he was sending money to the defendant for cultivation of the land and
also produced Ex.P-30 and P-31 regarding purchase of building material.
Money order receipts produced by plaintiffs No.3 and 4 show that they
have sent money to the defendant. But the fact remains that mother of
the plaintiffs and defendant was residing with the defendant and she
F died in the year 1987. Money order could have been sent by plaintiffs
No.3 and 4 for maintenance of the mother. In fact, second plaintiff-
Ananthaiah (CW2) has stated that plaintiffs No.3 and 4 used to send
small amount of money to their mother when they were in the army.
That being so, case of the plaintiffs No.3 and 4 that the amount was sent
only for development ofland and construction of the house ought not to
G have been accepted by the trial court and the High Court.
19. As discussed earlier, when the terms of the family settlement/
arrangement between the parties have been reduced to writing, it has to
be registered. But in the facts and circumstances of this case and the
conduct of the parties, Ex.D-22 appears to record the family settlement
H
SUBRAYA M.N. v. VITTALA M.N. & ORS. 935
[R. BANUMATHI, J.]

already arrived at between the parties. That Ex.022-resolution was acted A
upon is also supported by the subsequent conduct of the parties. Plaintiffs
No.3 and 4 retired from the army in 1988 and 1989 respectively. In his
evidence, third plaintiff-Lingappa has stated that after his retirement he
had purchased 1.00 acre of land in Thithimathi village and that he had
constructed a good house there. Third plaintiff has been working as a
B
watchman in the State Bank of Mysore at Hunsur and his wife was
working in the Family Welfare Department as a Warden and third plaintiff
was residing separate with his wife and family. Third plaintiff had also
admitted that he made an application to the Government for grant of
agricultural land to him in his capacity as ex-serviceman. Likewise, fourth
plaintiff had also purchased property in Kallubane and has constructed c
his own house in Kallubane and living separate. Wife of fourth plaintiff
is working in Taluk Office and fourth plaintiff is living with his family
members.
20. It is pertinent to note that even though the plaintiffs No.3 and
4 have retired from the anny in 1988 and 1989 respectively and were D
living separate, they have not made any claim for partition. Their mother
died in 1987. The defendant has made an application for grant of item
No.3 in his name in or about 1991, the tehsildar has issued proceedings
for regularization of ite1n No.3 in the name of the defendant by his
proceeding dated 08.12.1995. The defendant has paid the T.T. fine of
Rs.3489/- on 28.03 .1996/31.05.1996. Only thereafter, the plaintiffs appear E
to have filed the suit for partition. As noticed earlier, during the course of
trial, plaintiffs No. I and 2 stated that they have no claim or right in the
suit scheduled property in items No. I and 2. The conduct of the parties
would also affinn that there was a division in status of the defendant and
the plaintiffs in so far as items No. 1 and 2 are concerned which was F
affinned in the panchayat. All these material facts and evidence were
ignored by the courts below and concurrent findings of courts on items
No. I and 2 is to be set aside.
21. We are conscious that power under Article 136 of the
Constitution oflndia is to be exercised sparingly and only in furtherance G
ofjustice. But where both the courts have mis-appreciated the evidence
and ignored the weight of evidence on record and findings suffer from
perversity, this Court would certainly examine whether the findings are
consistent with facts and evidence on record and interfere with the
conclusion. As held in Gujarat Mineral Development Corporation
H
936 SUPREME COURT REPORTS [2016] 5 S.C.R.

A VS. P.H Brahmbhatt, (1974) 3 sec 601:(1974)2 SCR 128, where there
is gross or palpable error, the Supreme Court can also consider whether
the finding is wholly inconsistent with the material on record or whether
the lower court has dealt with the evidence in a perfunctory manner. In
the present case, courts below erred in ignoring the oral and documentary
evidence adduced by the defendant regarding items No. l and 2 and the
B
findings of the courts regarding items No. I and 2 are palpably erroneous
and the same is to be reversed.
22. So far as item Nu.3 in S.No.69/5C2 measuring 1.00 acre, case
of defendant is that Saguvali Chit (patta) was granted to him and item
No.3 is his self-acquired property. For item No.3, defendant gave
c application for grant of patta on 08.08.1989 and again submitted another
application on 28.05.1991. By the proceedings of Tehsildar dated
08.12.1995 under Rule I 08 of Karnataka Land Revenue (Amended)
Rule of 1991, patta of item No.3 was granted in favour of the appellant
subject to the conditions thereon and also subject to payment ofT. T. fine
D imposed on the said land. The appellant paid T.T. fine ofRs.3489/- vide
cha/an dated 28.03 .1996 which was acknowledged by the authorities
on 31.05.1996. Thereafter Saguvali Chit (patta) was granted to the
appellant on 19.06.1997, long after filing of the suit. DW-6-SDA in Taluk
Office has produced the records pertaining to the grant of patta for item
No.3 in favour of the defendant. Defendant has brought on record
E evidence that villagers have raised objections for grant of patta of item
No.3 to the defendant and the defendant is said to have paid Rs. I 000/-
to the villagers. In this regard, defendant has examined DW-4-
C.B.Muthappa who is working as a Chairman of the Seva Sahkara
Sangha ofKanoor village who has produced Ex.D33-the resolution book
F which contains the resolution to the effect that the sum of Rs. I 000/-
was paid by the defendant as fine. The documents would show that
Saguvali Chit (patta) for suit item No.3 was granted to the defendant on
19.06.1997 subsequent to the filing of the suit.
23. Case of the defendant is that since Saguvali Chit (patta) was
G granted to him, item No.3 is his self-acquired property. Rejecting the
contention, courts below recorded the findings that the defendant had
not established that the amount ofT.T. fine paid by him was from his
earnings and no evidence was adduced to show his source of income.
Placing reliance upon Thimmegowda vs. Siddegowda ILR 1991
Karnataka 4506, trial court held that item No.3 is the joint family property
H
SUBRAYA M.N. v. VITTALA M.N. & ORS. 937
[R. BANUMATHI, J.]

of the plaintiffs and the defendant. A
24. Refuting defendant's contention, plaintiffs have stated that even
during the lifetime of their father-Narayana, he was in possession of
item No.3 and the whole family contributed for the development of item
No.3. In his evidence DW-2-C.D.Annaiah has stated that during his
lifetime Narayana was cultivating item No.3. Likewise, plaintiffNo.1- B
Vittala had also stated that item No.3 of the suit scheduled property was
in the possession of their family during the lifetime of their father-
Narayana.
25. In his written statement defendant had averred that " ......... he
out of his own toil and sustained efforts encroached an area of c
1.25 acre bearing S.No.69/5C2 in the year 1962 and converted the
same into wetlands and revenue authorities had regularized his
encroachment". Father-Narayana died in or about 1962. After the death
ofNarayana, admittedly, defendant was running the family affairs. After
death ofNarayana, family must have continued the cultivation of item
No.3. The defendant cannot claim that he had individually encroached D
upon item No.3 even in the year 1962 and was cultivating the same in
his individual capacity by his own exertion. Evidence amply shows that
possession and cultivation of item No.3 was by the family and patta
was granted in the name of the defendant and it is to be held that the
patta was granted for the benefit of the entire family. E
26. As discussed earlier, there was division of status among the
brothers, the defendant and plaintiffs No. 3 and 4 during the year 1995
or at the time when the defendant paid Rs.20,000/-to plaintiffs No.3 and
4 for relinquishment of their interest in items No. I and 2 or on 18.03.1995
when before panchayat resolution (Ex.022) was passed. As noticed F
earlier, appellant had given the application for grant of patta of item
No.3 in 1989 and the same was renewed in 1991 during which time
there was no division of status among the defendant and plaintiffs No.3
and 4. Since the grant of item No.3 in the name of the defendant is for
the benefit of the family, trial court and the High Court rightly recorded
the concurrent findings that the plaintiffs are entitled to the share in item G
No.3.
27. So far as plaintiffs No. 1 and 2 are concerned, on receipt of
summons they did not appear before the trial court. They were summoned
as court witnesses and examined as CWs 1 and 2. So far as the share of
H
938 SUPREME COURT REPORTS (2016] 5 S.C.R.

A plaintiffs No. I and 2 in item No.3, by perusal of evidence ofCWs I and
2, it appears that they have relinquished their interest only in items No. I
and 2. As the grant of patta for item No.3 has been held to be for the
benefit of the family, plaintiffs No. I and 2 are also held entitled for a
share in item No.3 and thus the plaintiffs and defendant are entitled to 11
5'h share each in item No.3. First plaintiff-PW- I in his evidence stated
B
that he is not interested in items No. I and 2. So far as item No.3, he has
stated that since item Nu.3 of the suit scheduled property was in
possession of their family during the life time of their father, he does not
know what to ask. Second plaintiff (CW-2) in his evidence has stated
that he is not interested in the share of the suit properties as the extent is
c very small. When specifically being asked about item No. 3, CW2 has
stated that he is not interested in item No. 3 also. Though in their evidence,
plaintiffs No. I and 2 have stated that they are not interested in claiming
share, they have not filed anything in writing that their shares in item
No.3 may be given to plaintiffs No.3 and 4 and also the defendant. In
such facts and circumstances, in our view, plaintiffs No. 1 and 2 are
D
entitled to a share in item No.3. However, at the time of final decree/
proceedings, it is open to plaintiffs No. I and 2 to relinquish their share in
favour of either the defendant or plaintiffs No.3 and 4.
28. In the result, the judgment of the High Court of Karnataka
dated 20.03.2008 in R.F.A. No.805 of 1998 is set aside so far as suit
E
property items No. I and 2 is concerned and respondents/plaintiffs' suit
for partition of items No. I and 2 is dismissed. So far as item No.3,
impugned judgment is modified and it is held that all the four respondents/
plaintiffs and appellant/defendant are entitled to I /5 share each in item
No.3. Accordingly, the appeal is partly allowed. No order as to costs.
F Kalpana K. Tripathy Appeal partly allowed.