D. SAMBASHIVAN Vs. USHARANI D/O. LATE DHANAKOTI

JUDGEMENT

(1.) This Writ Petition assails the Order of the XXIIAdditional City Civil Judge, Bangalore City (hereinafter referred to as the Trial Court') in O.S. No. 9670/2005, passed on 19.12.2010, whereby a document styled as a Release Deed dated 05.05.1976 was permitted to be 'marked' by the Defendants in their evidence, in a suit for partition and possession of Joint family properties filed by the Plaintiff-Petitioner. Review Petition No. 482/2010 has been filed by the plaintiff to recall the Judgment dated 17.01.1994 rendered by the Division Bench in RFA No. 43/1993 reversing the earlier Order dated 16.01.1993 of the Trial Court, in essence declining to allow the very same 'Release deed' to be read in evidence. The plaintiff - D. Sambashivan and defendants' father late Dhanakoti were brothers, being the sons of late Doraiswamy Mudaliar. Dhanakoti was the eldest son of seven siblings (four brothers and three sisters) and the Plaintiff-Sambashivan the youngest of the brothers. It appears that the former (eldest brother) assumed the responsibility of bringing up the latter (the youngest brother). The property in question is situate in Muddenahalli, Bangalore North Taluk, located on Seshadri Road, City Railway Station, Bangalore (hereafter referred to as 'the suit property'). It is a three storied building on plot No. 44 measuring one acre three guntas. The original proprietor namely, Doraiswamy Mudaliar died on 30.09.1952 and his widow on 15.05.1956. Dhanakoti (father of the defendants), Om Prakash, Mani and Sambashivan (plaintiff) were the coparceners of the said HUF and Dhanakoti being the eldest son, became its kartha. The other brothers namely, Om Prakash executed a duly registered Release Deed on 05.05.1962 in favour of Dhanakoti, father of the defendants on 28.06.1971. Mani separated himself from coparcenary vide duly registered Partition Deed dated 28.06.1971 also in favour of Dhanakoti.

(2.) On behalf of the defendants it is contended that their uncle/Plaintiff had entered into an oral partition with Dhanakoti, relinquishing his right, title and interest in all the movable and immovable properties of the joint family in April 1976; an affidavit of declaration was sworn by him on 15.04.1976 before the Chief Judicial Magistrate; and this was followed up by the purported Release Deed dated 05.05.1976 which forms the fulcrum of their fight. The Plaintiff contends that it is inadmissible in evidence since it is neither properly stamped nor registered. The Defendants claim that payments have been made in connection with the said Release Deed, whereas the Plaintiff asserts that those payments were for salary and other dues payable to him by his brother Dhanakoti. In the meantime, a third party namely, Venkateshan had filed suit O.S. No. 10021/1985 seeking recovery of money from the Plaintiff. This suit was decreed ex parte Sambashivan, on 05.11.1985; and thereafter Execution Petition No. 10015/1987 was filed in which Sambashivan was similarly set ex parte. It was in those circumstances that an attachment order came to be passed in respect of the suit property. The defendants, successors in interest of their father late Dhanakoti, immediately initiated proceedings under Order XXI Rule 58 of the Code of Civil Procedure, asserting that the suit property was not available or liable for attachment towards satisfaction of the decree passed in favour of Venkateshan inasmuch as the Plaintiff had already relinquished or released his interest in the attached property by executing the purported Release Deed in question. This motion under Order XXI Rule 58 CPC bearing Miscellaneous Case No. 10106/1989 came to be dismissed by the Execution Court on 16.01.1993, resulting in the filing of Regular First Appeal No. 43/1993. It is significant that the Defendants had not impleaded the Plaintiff (also the ex parte Judgment-Debtor) in the said Appeal which, in that event, came to be heard and decided in the absence of even the Decree Holder Venkateshan in their favour i.e., completely reversing the view and the order of the Execution Court.

(3.) It is the uncontroverted case of the parties that the Plaintiff was not granted a hearing by the Division Bench; in fact, even the decree holder was absent before the Division Bench as well. It transpires that the execution proceedings were disposed of on the basis of a statement made by the decree holder Venkateshan that the decree stood satisfied. Since the Plaintiff had not appeared before the Execution Court, a reasonable suspicion could arise that the Defendants may have orchestrated the entire episode with the objective of introducing the controversial 'Release Deed' behind the back of the Plaintiff. It is also relevant that a partition suit bearing O.S. No. 367/1991 had been previously filed by the Plaintiff, but in forma pauperis. Before permission to file that suit as an indigent/pauper was granted that action was dismissed for default/non-prosecution. In our opinion, this dismissal, in the absence of it being restored as contemplated under Order IX Rule 9 CPC, precludes the Plaintiff from re-agitating his indigent/pauper status. The principles of res judicata, would be attracted only if that claim had been cogitated upon and that event would transpire only after the Plaintiff had been declared as a pauper, or in the event of not being so held, had he paid the appropriate Court fee. Admittedly, O.S. No. 367/1991 was dismissed for default/non-prosecution before that determination had been pronounced by the Court.