A. S. PUTTAIAH NAIKA v. G. S. MANJAMMA — 1987 DIGILAW 323 (KAR)

( 1 ) THIS is defendants' appeal against the Judgment and decree dated 4. 2. 1987 made in O. S. No. 100/ 82 by the Civil Judge, Chickmagalur. ( 2 ) APPELLANTS 1 to 5 and the respondent herein would be hereinafter referred to as defendants 1 to 5 and the plaintiff respectively as shown in the original proceedings. ( 3 ) THE plaintiff filed the suit for partition and separate possession of her 1/3rd share in the properties mentioned in 'a' schedule and 'b' schedule, for accounts and for enhancement of the maintenance from Rs. 180/- to Rs. 300/- per mensum, till the date she was put in possession of her l/3rd share in the suit 'a' and 'b' schedule properties. ( 4 ) THE plaintiff averred that her husband and defendants 1 and 2 are the sons of one late sannasubbaiah Naika; that they constitute a joint Hindu family governed by Mithakshara law; that her husband died about 40 years prior to the institution of the suit leaving behind him herself as the only L. R and that the suit 'a' and 'b' schedule properties are the joint family properties in which she has 1/3rd share. ( 5 ) SHE also averred that the plea of defendants that there has been division of the joint family property among themselves is not binding on her and that inspite of her request, the defendants failed to give her 1/3 share in the suit 'a' and 'b' schedule properties. ( 6 ) ACCORDING to her, defendants had agreed to pay a sum of Rs. 600/- as maintenance per year and accordingly, they had executed a registered deed of maintenance on 27. 3. 1958. The plaintiff instituted the suit for enhancement of the maintenance in O. S. No. 77/72 filed in the court of the Munsiff, N. R. Pura. The suit came to be decreed and the maintenance allowance was raised to Rs. 180/- per month and a charge was also created upon the suit 'a' and 'b' schedule properties. ( 7 ) THOUGH the defendants entered appearance, defendant-2 alone filed the written statement and the other defendants adopted the written statement of defendant-2 by filing a memo. The suit came to be decreed and the maintenance allowance was raised to Rs. 180/- per month and a charge was also created upon the suit 'a' and 'b' schedule properties. ( 7 ) THOUGH the defendants entered appearance, defendant-2 alone filed the written statement and the other defendants adopted the written statement of defendant-2 by filing a memo. ( 8 ) AMONG other things, the defendants contended that the joint family did not possess or own all the properties detailed in 'a' schedule and 'b' schedule; that plaintiff was not entitled to 1/3rd share in the suit schedule properties, that they had not effected any partition and that they were living jointly. They admitted about the execution of the registered maintenance deed in favour of plaintiff in the year 1958 and about the enhancement of the maintenance by means of a decree in O. S. No. 77/72. The defendants contested the suit mainly on the ground that the suit was barred by the principles of RESJUDICATA, and was barred by the provisions contained in Order-II, Rule 2 of the Code of Civil Procedure. They also set up adverse title to the suit 'a' and 'b' schedule properties contending that they had perfected their title by adverse possession. ( 9 ) IT was on the basis of these pleadings that 7 issues came to be formulated for adjudication by the learned trial Judge. They read as under:-1. Whether plaintiff proves that all the suit schedule properties are the joint family properties ? 2. Whether plaintiff proves that she requires a sum of Rs. 300/- per month for her maintenance ? 3. Whether defendants prove that the suit for partition is not maintainable ? 4. Whether defendants prove that the suit is barred under the provisions of Order 2, rule 2 C. P. C. , and Section 11 of the CPC ? 5. Whether the suit is barred by time ? 6. Whether defendants prove that they have perfected their title to the suit properties by adverse possession ? 7. Whether the suit is properly valued for purpose of court fee and jurisdiction ? ( 10 ) TO substantiate her say and to establish her claim made in the suit, the plaintiff examined herself as PW1 and marked 28 doucments. ( 11 ) ON behalf of defendants, 2 witnesses including defendant-2 were examined and 7 documents were marked for them. Whether the suit is properly valued for purpose of court fee and jurisdiction ? ( 10 ) TO substantiate her say and to establish her claim made in the suit, the plaintiff examined herself as PW1 and marked 28 doucments. ( 11 ) ON behalf of defendants, 2 witnesses including defendant-2 were examined and 7 documents were marked for them. ( 12 ) THE learned trial Judge on consideration of the evidence held that the plaintiff had failed to prove that all the properties mentioned in the suit schedules were the joint family properties. He negatived the contention of the defendants that the suit was barred by the principles of resjudicata and that it was hit by order-2 rule-2 of the C. P. C. He also held that the suit was not barred by time and that the defendants had failed to substantiate the plea of adverse possession. The learned trial Judge also held that the suit filed by the plaintiff was maintainable since in the earlier partition between the defendants 1 and 2, the plaintiff was denied her legitimate share in the joint family properties to which she was entitled to succeed as the sole heir of her deceased husband. The learned trial Judge therefore gave a decree in favour of the plaintiff declaring her as entitled to l/6th share in items no. 1 to 8, 10, 11 and 12 and 1 acre 33 guntas out of item No. 13 of Schedule 'a'. The learned trial Judge held that the plaintiff was not entitled to any share in the entire item No. 5, 2 acres out of item No. 13, entire extent of items No. 14 and 15 and also the moveable properties specified in 'b' schedule. The learned trial judge held that the plaintiff was entitled to enhancement of maintenance from Rs. 180/- per month to Rs. 250/- per month, from the date of the suit till the date of delivery of possession of her share of the suit schedule properties. He also directed that the maintenance amount payable to her from the date of delivery of possession of her share is ordered to be adjusted out of the income that she is entitled to get after taking accounts as ordered. ( 13 ) IT is the correctness of this decree that is challenged by the defendants in this appeal. He also directed that the maintenance amount payable to her from the date of delivery of possession of her share is ordered to be adjusted out of the income that she is entitled to get after taking accounts as ordered. ( 13 ) IT is the correctness of this decree that is challenged by the defendants in this appeal. ( 14 ) BEFORE us, it was argued that plaintiff having obtained maintenance under Ex. D3 dated 27. 3. 58, was not entitled to any share in the joint family properties. Elaborating further, it was urged that plaintiff under law was entitled either to maintenance or to a share in the joint family properties and that having availed of the maintenance granted by defendants 1 and 2 and having asked for its enhancement in a suit, the plaintiff must be presumed to have renounced her right to claim share in the joint family properties. ( 15 ) WE do not find any infirmity in the finding of the learned trial judge that there was a partition among the defendants in respect of the joint family properties during the year 1976-77. The plaintiff could not have had personal knowledge of this partition, as she was living in a different village altogether. But there is clinching evidence placed by the plaintiff to establish the plea of partition among the defendants in respect of the joint family properties. Exhibit-Pi 1 the mutation register extract makes it clear that the defendants effected partition in the year 1976-77, reported the matter to the Revenue Authorities and got the hissas entered in their own names pursuant to the wardi of partition. The names of the defendants have been entered in the Record of Rights and the index of Lands. ( 16 ) IT is of some significance to note that this mutation is not disputed by the defendants. The explanation offered by defendant-2 that the mutation came to be made to circumvent the provisions of the Karnataka Land Reforms act, cannot be accepted and the learned trial Judge has rightly repelled the explanation. ( 16 ) IT is of some significance to note that this mutation is not disputed by the defendants. The explanation offered by defendant-2 that the mutation came to be made to circumvent the provisions of the Karnataka Land Reforms act, cannot be accepted and the learned trial Judge has rightly repelled the explanation. The trial Judge adverting to the contention of the defendants that even after 1976-77 they have been living together, cultivating the lands jointly and living jointly, has held that this fact does not undo the partition and cannot out-weigh the effect of the evidence showing that there was a partition among the defendants defining their respective shares in the joint family properties which puts an end to the joint status, even if the defendants after the partition lived jointly, cultivating the lands jointly. It is obvious that they would hold the lands as tenants in common and not as coparceners. ( 17 ) WE cannot countenance the proposition stated at the Bar that the plaintiff having obtained maintenance under Exhibit-D3 is not entitled to any share in the joint family properties. In the first place, the recitals in exhibit-D3 do not disclose that plaintiff relinquished her right to succeed to her husband's share in the joint family properties. Exhibit-D3 that by accepting mainte- by defendants 1 and 2 unilaterally. The plaintiff is not a signatory to Exhibit-D3. May be she might have agreed to receive a sum of Rs. 600/- as maintenance from defendants 1 ayid 2 as a measure of convenience. But, it is impossible to conclude on the basis of exhibit-D that by accepting maintenance, she agreed to forgo what the statute has conferred on her i. e. , succeeding to her husband's estate as Class-I of the Schedule under the proviso to Sec. 6 of the Hindu Succession Act. Reliance was placed on the decision in the case of JETTI VARAHALAMMA vs. JETTI AMMATHALLI NAIDU (DIED) AND OTHERS (A. I. R. 1959 andhra Pradesh, 590) to contend that the plaintiff was entitled either to maintenance or a share in the joint family property and that having availed of the maintenance, the plaintiff must be presumed to have renounced her rights to claim a share in the joint family properties. After carefully going through the decision, we must state that the decision favours the plaintiff rather than the defendants. After carefully going through the decision, we must state that the decision favours the plaintiff rather than the defendants. It was observed in the said case that the 'hindu women's Right to Property Act, 1937, was passed for the purpose of conferring better rights on a Hindu widow, which meant, that instead of the widow getting a mere maintenance from her husband's her estate, she could claim a share in the same. It was further observed that, if for some reason, she is not in a position to ask for a share, her right to claim mintenance from her husband's estate by reason of her being the widow of a member of a coparcenary, cannot be said to have been lost. ( 18 ) THE finding of the learned trial Judge that the suit is not hit by the provisions contained in order 2 of Rule 2 of the C. P. C. appears to be absolutely sound, justifying no interference by us whatsoever. In 1972 the plaintiff filed a suit for enhancement of maintenance. She had no cause of action to file the suit out of which the present appeal arisen as there was no partition between the defendants 1 and 2, she got the right to file a suit to claim a share at the partition in which she had been excluded. This partition had taken place during the year 1976-77. Therefore, the court below came to the conclusion that she could not claim relief of her share at a partition which had not taken place. The suit was only for enhancement of the quantum of maintenance. The learned trial Judge giving due consideration to the evidence, has held that the plaintiff is not entitled to any share in item 9, 2 acres out of item No. 13, the entire extent of Nos. 14 and 15 and also the moveable properties specified in 'b' schedule. The plaintiff has not filed any cross- objections or an appeal against that part of the decree. We, therefore, find the decree under appeal deserves to be confirmed. ( 19 ) BEFORE parting with this case, we have to refer to two applications filed by the defendants as I. As. 2 and 3, one for amendment of the written statement and another for the reception of additional evidence. We, therefore, find the decree under appeal deserves to be confirmed. ( 19 ) BEFORE parting with this case, we have to refer to two applications filed by the defendants as I. As. 2 and 3, one for amendment of the written statement and another for the reception of additional evidence. The amendment proposed to the written statement is to include a plea that the land measuring 3-33 guntas in S. No. 125/4 was the land purchased by the 2nd defendant under a sale deed dated 6-5-1963 out of his self-earnings. This plea now sought to be included was within the knowledge of the defendants when the written statement was filed in the suit. Nothing prevented the defendants from taking up the plea and there is no explanation as to why such an important plea was not raised when they had the opportunity. Assuming that such a plea is now permitted, there is no plea as to the independent source of income from out of which defendant-2 would have purchased the lands, out of the income of the joint family properties. Therefore, it would be unfair to permit the amendment at this stage. ( 20 ) AS regards I. A. No. 3 which is relatable to the sale deed concerning the two lands claiming to be the self-acquired properties of defendant-2. We are not convinced of the reasons advanced for the reception of the documents at this stage. The case put forward is that the original sale deed was given to the lawyer and he lost it in his office. Nothing prevented the defendants in that circumstance to obtain a certified copy of the original sale deed and produce the same as secondary evidence after making out a case for the reception of the same as secondary evidence. That was not done. Therefore, they cannot now be permitted to seek leave of the court to receive the sale deed as additional evidence which, in any event, does not alter the case or improve in the absence of evidence, of independent income of defendant-2, which could not have enabled him to purchase the two lands. We therefore dismiss I. As. 2 and 3. The appeal is dismissed with costs. Advocate's fee is rs. 200/ -. --- *** --- .