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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5805  OF 2016 (Arising out of SLP(C) No.27268 of 2008

SUBRAYA M.N.                                            ...Appellant

Versus

VITTALA M.N. & ORS.                                               …Respondents

J U D G M E N T

R. BANUMATHI, J  .

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.

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

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comprises of item No.1 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 1.00 acre.  Items No. 1 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.

House in item No.2 was constructed in the year 1980 from out of

the joint family income and the contribution made by respondents

No.3 and 4. Late Narayana was in possession of suit property item

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 of

the  plaintiffs,  appellant  filed  an  application  to  the  Tehsildar  for

grant of  patta  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 1/5th share to each of them.

4. In the written statement,  appellant-defendant claimed

that so far as items No.1 and 2 are concerned, plaintiffs No.1 and 2 2

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have sold their shares-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.1 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  the  defendant  will  give  Rs.50,000/-  to

plaintiffs No. 3 and 4 and defendant will have all rights over items

No.1 and 2.  So far as suit property in item No.3 is concerned,

appellant-defendant claimed that he had encroached the said area

of 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  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 1 and 2 and two more

witnesses were examined as PWs 3 and 4.  Defendant examined

himself as DW-1 and examined four other witnesses.  During the

course of trial, respondents No.1 and 2-plaintiffs No.1 and 2 were

examined as CWs 1 and 2 and they have stated that they have no

claim or right in items No.1 and 2.   3

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6. Upon  consideration  of  evidence,  trial  court  held  that

sale deed (Ex.D13) dated 28.04.1976 is proved and the said sale is

only by plaintiffs No. 1 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. D14 and D23

as  there  can  be  no  relinquishment  without  any  registered

documents and on those findings held that plaintiffs No.3 and 4 are

entitled to 1/3rd share each in items No.1 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 1/3rd share each in item No.3 also.   

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 of Exs. D14 and D23, it cannot be

held that the 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 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

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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 No.1 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 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.

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.1 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 possession of late Narayana who had

developed the same and the defendant cannot regard item No.3 as 5

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his self-acquired property.  Onbehalf of the plaintiffs, it was urged

that  the  courts  below  have  recorded  concurrent  findings  that

plaintiffs No.3 and 4 are entitled to 1/3rd share in each of the suit

scheduled  property  and  the  said  concurrent  findings  cannot  be

interfered with.   

10. We have carefully considered the rival contentions and

perused 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

Narayana  had  two  daughters  who  are  married  and  have  not

claimed any right with regard to the suit scheduled property.  The

mother of the plaintiffs died in the year 1987.  Plaintiffs No.1 and 2

examined in the trial court as CWs 1 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.   

12. So far as item No.1 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.1 and 2 have executed a registered sale deed (Ex.D13)

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 6

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(25 cents + 25 cents). So far as plaintiffs No.3 and 4 are concerned,

case of the defendant is that plaintiffs No.3 and 4 agreed to receive

a sum of Rs.50,000/- in lieu of their shares in items No.1 and 2  of

the  suit  scheduled  property.  Defendant  had  produced  Ex.D14

(dated 19.05.1995)  executed by plaintiff  No.3 for  Rs.20,000/-  in

favour  of  the  defendant  and  Ex.D23  (dated  12.12.1994)  said  to

have been executed by plaintiff No.4 in favour of the defendant in

lieu of his share in the property items No.1 and 2. In his evidence,

defendant-DW-1 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.D22)  was  passed  in  the

panchayat.  Ex.D22 is the resolution of the village panchayat which

is signed by panchayatdars, defendant and plaintiffs No.3 and 4 in

the  presence  of  panchayatdars. 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 Lingappa agreed to be sold absolutely to Subraya at Rs.50,000/- each.  Out of the  amount  of  Rs.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 1st instalment of Rs.15,000/- will 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. Gopal and Lingappa have relinquished their rights over the property and handed over the same to  Subraya today itself.   If  the  parties  to  this  proceedings  do  not

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perform their part of contract and fail to act, they will 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 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 of Rs.15,000/-

each to plaintiffs No.3 and 4.

13. To substantiate his plea that there was a panchayat in

which plaintiffs No.3 and 4 have relinquished their rights in items

No.1 and 2 of  the suit  properties,  defendant has examined C.D.

Annaiah (DW-2) who deposed that the plaintiffs No.3 and 4 have

received money from the defendant in respect of items No.1 and 2.

He further stated that as per the  panchayat resolution Ex. D22,

defendant  had  also  paid  a  sum  of  Rs.15,000/-  to  each  of  the

plaintiffs.  DW-3-Belliyappa  who  is  the  brother-in-law  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.D14) and Ex.D23 is the receipt pertaining to

plaintiff No.4 and he has not signed in the receipt.   

14. Defendant  has  also  examined  DW-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

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in respect of the suit property items No.1 and 2. He had produced

Ex.D34-resolution book of  the  panchayat containing the original

resolution Ex.D22 dated 18.03.1995.   

15. Considering the plea of relinquishment of their right by

plaintiffs No.3 and 4 in items No.1 and 2, after referring to Ex.D22

resolution and the oral  evidence,  trial  court as well  as the High

Court held that in the absence of any conveyance deed Exs.D14,

D23 and D22, it cannot be established that plaintiffs No. 3 and 4

have forfeited their rights in respect of items No.1 and 2 of the suit

scheduled property.  Courts below have recorded findings that even

though Ex.D14 bears signature of plaintiff No.3, Ex.D23 does not

bear the signature of plaintiff No.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.1 and 2 of

the suit scheduled property and mere production of Ex.D14 and

Ex.D23  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. 1 and 2.  Even though Exs. D14

and D23 do  not  contain  the  survey  number,  as  noticed  earlier,

Ex.D22  panchayat  resolution refers  to  suit  scheduled  property

items  No.1  and  2  in  S.  No.69/69  measuring  1.00  acre  and

S.No.69/70 measuring 0.25 acre and that amount of Rs.20,000/- 9

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has already been paid by the defendant to plaintiffs No.3 and 4. As

pointed out earlier,  Ex.D22 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

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.1 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 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 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.D22 is to the effect of

relinquishment of right in items No.1 and 2, Ex.D22 could be taken

as family arrangements/settlements.  There is no provision of law

requiring  family  settlements  to  be  reduced  to  writing  and 10

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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 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 conduct of the parties.  In the present

case,  Ex.D22  panchayat  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.  

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.1 and 2

of the suit scheduled 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 for the construction of  the house in

item No.2 of the suit property.  Plaintiff No. 3 had produced Ex.P8 11

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to P-29-M.O. receipts and acknowledgment cards showing that 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.1 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.  Plaintiff  No.4-Gopal  has  also  produced  money  order

receipts Exs.P-33 to P-36 to show that 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

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 of land and

construction of the house ought not to have been accepted by the

trial court and the High Court.  

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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 already arrived at between the parties.

That Ex.D22-resolution was acted 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 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  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  army  in  1988  and  1989 13

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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 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 to

have  filed  the  suit  for  partition.   As  noticed  earlier,  during  the

course of trial, plaintiffs No. 1 and 2 stated that they have no claim

or right in the suit scheduled property in items No.1 and 2.  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 items No. 1

and 2 are concerned which was affirmed in the  panchayat.   All

these material facts and evidence were ignored by the courts below

and concurrent findings of courts on items No.1 and 2 is to be set

aside.  

21. We are conscious that 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  from  perversity,  this  Court  would

certainly  examine whether the findings are  consistent  with facts 14

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and evidence on record and interfere with the conclusion.  As held

in  Gujarat  Mineral  Development  Corporation vs.  P.H.  Brahmbhatt,

(1974)  3  SCC  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.1  and  2  and  the  findings  of  the

courts regarding items No.1 and 2 are palpably erroneous and the

same is to be reversed.   

22. So  far  as  item No.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 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  108  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 of T.T. fine imposed

on the said land.  The appellant paid T.T. fine of Rs.3489/- vide

chalan dated  28.03.1996  which  was  acknowledged  by  the 15

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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  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.1000/- 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 of Kanoor

village  who  has  produced  Ex.D33-the  resolution  book  which

contains the resolution to the effect that the sum of Rs.1000/- 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  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 of T.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 of the plaintiffs and the defendant.  16

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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, plaintiff No.1-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  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  of  Narayana,  admittedly,  defendant  was

running the family affairs.  After death of  Narayana, family must

have continued the cultivation of item No.3.  The defendant cannot

claim that he had individually encroached 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. 17

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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.1 and 2 or  on 18.03.1995 when before  panchayat  resolution

(Ex.D22) was passed.  As noticed 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 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 plaintiffs No.1 and 2 in item No.3, by perusal of

evidence of CWs 1 and 2, it appears that they have relinquished

their interest only in items No. 1 and 2.  As the grant of  patta for

item No.3 has been held to be for the benefit of the family, plaintiffs

No.1 and 2 are also held entitled for a share in item No.3 and thus

the plaintiffs and defendant are entitled to 1/5th share each in item 18

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No.3.   First  plaintiff-PW-1 in  his  evidence stated  that  he is  not

interested in items No. 1 and 2.  So far as item No.3, he has stated

that  since  item  No.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  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.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 plaintiffs No.3 and 4 and also the defendant. In

such facts and circumstances, in our view, plaintiffs No. 1 and 2

are entitled to a share in item No.3.  However, at the time of final

decree/proceedings, it is open to plaintiffs No.1 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  property  items  No.1  and  2  is  concerned  and

respondents/plaintiffs’  suit  for  partition  of  items  No.1  and  2  is

dismissed.  So far as item No.3, impugned judgment is modified 19

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and  it  is  held  that  all  the  four  respondents/plaintiffs  and

appellant/defendant are entitled to 1/5 share each in item No.3.

Accordingly, the appeal is partly allowed.  No order as to costs.

….……………………..J.   (KURIAN JOSEPH)     

..………………………..J.   (R. BANUMATHI)

New Delhi; July 05, 2016

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