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2010 DIGILAW 993 (KAR)

Arun Kumar v. Anil Kumar

2010-09-09

N.K.PATIL, S.N.SATYANARAYANA

body2010
Judgment :- 1. This is defendants’ appeal challenging the Judgment and Decree dated 7.10.2006 passed in O.S.No.10/2006 on the file of Civil Judge [Sr.Dn.] at Aland. 2. This brief facts leading to this appeal are as under:- Appellants 1 and 2 are defendants 1 and 2 and respondents 1 to 3 are plaintiffs 1 to 3 in the Court below. For the sake of convenience, the parties are referred according to their ranking found in the Court below. 3. The case of the plaintiffs 1 to 3 is that, plaintiff No.3 is the second wife of one late Kupendra Koralli, who was working as Supervisor in Primary Co-operative Agricultural and Rural Development Bank Limited, Chincholi and plaintiffs 1 and 2 are the children born to Kupendra Koralli and third plaintiff in their wedlock. Kupendra Koralli had earlier married Smt.Sonabai-2nd defendant, in the wedlock they had a son by name Arun Kumar first defendant in the Court below. The said Kupendra Koralli died on 21.8.1998 while in service leaving behind his two wives and three sons from the said marriage. The suit schedule properties i.e., land bearing Sy.No.218/D measuring 9 acres 16 guntas and also a house bearing No.2092 situated at Kadaganchi Village, Aland Taluk, Gulbarga District are his absolute properties. Plaintiffs together sought for partition of the said property and allotment of 2/3rd share to them in the said properties. 4. In the said proceedings, defendants were duly served. They entered appearance through Counsel, filed written statement denying all the plaint averments. They contended that plaintiff suit is fraudulent one, filed suppressing material facts. The suit is hit by limitation and as well as the principle of res judicata for the reason that in earlier proceedings in P & SC No.2/2003. It is held that the third plaintiff is not the wife of Late Kupendra Koralli. Further, in an earlier suit O.S.No.323/2002 filed by defendants for partition and separate possession against brothers and sisters of Kupendra Koralli, plaintiffs herein were defendants 6 to 9. The said suit was decreed on 24.2.2005 granting 1/3rd share to the defendants denying any share to plaintiffs. In view of the plaintiffs being parties to the said proceedings have not challenged decision in the said proceedings, decision rendered against them in the aforesaid proceeding act as res judicata against them. Therefore, the present suit is not maintainable against the defendants. In view of the plaintiffs being parties to the said proceedings have not challenged decision in the said proceedings, decision rendered against them in the aforesaid proceeding act as res judicata against them. Therefore, the present suit is not maintainable against the defendants. It is also contended that the suit suffers from non-joinder of necessary parties for the reason that the other defendants in O.S.No.323/2002 namely., brothers and sisters of deceased Kupendra Koralli not being made parties to the present suit. 5. Regarding succession, the defendants contend that, it is already decided in P & SC NO.2/2003. The plaintiffs being party to the same, have not challenged the finding against the plaintiffs. Thereafter, they cannot now seek adjudication of their alleged right to succession in this proceedings. The suit of the plaintiffs according to defendants is not maintainable and the suit schedule properties are not absolute properties of Late Kupendra Koralli, they are ancestral property and are not in joint possession of plaintiffs and defendants, as they were not the members of same family. 6. In the written statement, defendants in their zeal to deny the claim of plaintiffs have gone to the extent of denying parentage of plaintiffs 1 and 2 and the relationship of third plaintiff with Kupendra Koralli and contend that plaintiffs have no legal right to seek share in the property of deceased Kupendra Koralli. Defendants also took up the contention that second defendant is the only wife of late Kupendra Koralli and Arun Kumar is their only son and also raised other objections regarding the maintainability of the suit, Court fee payable thereon and on all other aspects. Based on the said pleadings, the Court below framed the following 8 issues:- 1. Whether the plaintiffs have to prove that the suit properties are the joint family properties of the plaintiffs and defendants and they are in joint possession of the suit schedule properties? 2. Whether the plaintiffs are entitled for 2/3rd share in the suit schedule properties as shown in Schedule “A”? 3. Whether the defendants have to prove that the suit is fraud and full of suppression of facts and suit of the plaintiff is not maintainable? 4. Whether the defendants have to prove that the suit of the plaintiff is totally barred by limitation? 5. 3. Whether the defendants have to prove that the suit is fraud and full of suppression of facts and suit of the plaintiff is not maintainable? 4. Whether the defendants have to prove that the suit of the plaintiff is totally barred by limitation? 5. Whether the defendants have to prove that the suit of the plaintiffs is bit by provisions of Sec.11 of CPC as Resjudicata in view of pronouncement of Judgment in P& SC No.2/2003 on the file of Civil Judge [Sr.Dn.] and O.S. No. 23/02 on the file of Civil Judge (Sr. Dn.) Aland? 6. Whether the defendants have to prove that the suit of the plaintiff is hit by non-joinder of necessary parties? 7. What relief parties are entitled? 8. What decree or orders? The Court below on appreciation of pleadings and evidence, answered Issue No.1 in affirmative; Issue No.2 partly in affirmative; Issue Nos.3 to 6 in the negative and Issue Nos.7 & 8 as per final order, decreeing the plaintiffs’ suit with costs declaring that the plaintiffs 1 and 2 are together entitled for half share in Item Nos.1 and 2 in the suit schedule properties. 7. The defendants being aggrieved by the said Judgment and Decree challenged the same in this appeal on the following grounds:- That the Court below wrongly decreed the suit without framing issue regarding existence of relationship between plaintiffs and deceased Kupendra Koralli and without there being necessary finding to support the claim of the plaintiffs. The impugned Judgment is not based on positive evidence supporting the contention of third plaintiff regarding her relationship with deceased Kupendra Koralli. Infact, the Court below has not properly appreciated the Judgment passed in P & SC No.2/2003, wherein, third plaintiff has failed to prove that she is the legally wedded wife of deceased Kupendra Koralli. 8. The finding in the said P & SC proceedings having reached the finality, plaintiffs herein cannot maintain a suit for partition claiming to be the children and wife of deceased Kupendra Koralli. Non appearance of third plaintiff and deposing in the Court below in support of her relationship with deceased Kupendra Koralli, is fatal to the suit. The finding of Court below that the third plaintiff is wife of Kupendra Koralli in the absence of acceptable oral and documentary evidence on this behalf is bad. Non appearance of third plaintiff and deposing in the Court below in support of her relationship with deceased Kupendra Koralli, is fatal to the suit. The finding of Court below that the third plaintiff is wife of Kupendra Koralli in the absence of acceptable oral and documentary evidence on this behalf is bad. The Court below was not justified in granting relief in favour of plaintiffs 1 and 2, accepting them children of Late Kupendra Koralli through third plaintiff. That the Court below has failed to accept the admission of the parties that there was earlier partition between parties to the suit. Therefore, the Judgment rendered in allowing the suit of plaintiffs is not valid and that the Court below has also not appreciated the evidence on record, which discloses that there is no relationship between third plaintiff and deceased Kupendra Koralli and that there is also an act of fraud and perjury played by the plaintiffs before the Court. Therefore, the Court ought to have dismissed the suit filed by the plaintiffs for partition. 9. In this appeal, notice is duly served on defendants, who are respondents in the appeal. The defendants entered appearance through Counsel in this appeal. This Court after securing the entire trial Court records and on going through the pleadings and grounds urged in the appeal memo, has framed the following points for consideration in this appeal:- .(1) Whether the Court below is justified on allowing the suit filed by the plaintiffs/respondents herein in O.S.No.10/206 and decreeing the same granting half share to the plaintiffs/respondents herein in the suit schedule properties? .(2) Whether the Judgment and Decree passed by the Court below required to be modified/set aside? .(3) What order? 10. We have heard the learned Counsel for the appellants/defendants and perused the Lower Court records. This Court answered the aforesaid points for consideration partially in the affirmative for the following reasons:- Plaintiffs in the Court below have clearly admitted in their pleading that third plaintiff is second wife of deceased Kupendra Koralli. Though the defendants in the present suit have denied that there was no relationship between deceased Kupendra Koralli and third plaintiff in the earlier suit in O.S.No.323/2002 filed by defendants 1 and 2 against the plaintiffs herein and others on the file of Civil Judge (Jr. Though the defendants in the present suit have denied that there was no relationship between deceased Kupendra Koralli and third plaintiff in the earlier suit in O.S.No.323/2002 filed by defendants 1 and 2 against the plaintiffs herein and others on the file of Civil Judge (Jr. Dn.) Aland, defendants 1 and 2 have clearly admitted that the third plaintiff is the second wife of Kupendra Koralli and plaintiffs 1 and 2 are the children of deceased Kupendra Koralli. Therefore, the defence taken by the defendants 1 and 2 in the present suit that the plaintiffs 1 to 3 are totally strangers and that the parentage of plaintiffs 1 and 2 being not known to them, cannot be accepted. 11. It is also seen that in the present suit, the plaintiffs in support of their claim have examined the brothers of deceased Kupendra Koralli as plaintiffs witnesses – P.W.2 and P.W.3, who are also the uncle of first defendant and brother-in-law of second defendant. The said witnesses P.W.2 and PW.3 have clearly admitted in their evidence that their brother-Kupendra Koralli had married third plaintiff, in the wedlock plaintiffs 1 and 2 are born. With this evidence on record, the parentage of plaintiffs 1 and 2 to that of Kupendra Koralli is confirmed beyond all reasonable doubts. 12. It is further seen that as contended by the defendants 1 and 2 herein, the second defendant had earlier initiated proceedings in P & SC 2/2003 on the file of Civil Judge [Sr. Dn.] Aland for the relief of securing succession certificate to receive gratuity amount of Rs.75,000/-and Provident Fund of Rs.20,000/-approximately and family benefit, gratuity and Insurance of Rs.10,000/-due to the death of Kupendra Koralli while in service as Supervisor in Primary Co-operative Agricultural and Rural Development Bank Limited, Chincholi, who expired on 21.8.1998 at Sedam. In the said proceedings, the second defendant is petitioner and plaintiffs No.1 to 3 are respondents, wherein she described plaintiffs 1 and 2 as children of Late Kupendra Koralli and plaintiff No.3 as his second wife. In the said proceeding, Succession Certificate is granted in favour of second defendant to receive the aforesaid amount by an order dated 8.11.2004. Pursuant to the order passed therein, the first defendant, who is son of second defendant through deceased Kupendra Koralli has secured a job on compassionate ground in the aforesaid Bank, where his father was working. In the said proceeding, Succession Certificate is granted in favour of second defendant to receive the aforesaid amount by an order dated 8.11.2004. Pursuant to the order passed therein, the first defendant, who is son of second defendant through deceased Kupendra Koralli has secured a job on compassionate ground in the aforesaid Bank, where his father was working. In the said Judgment, the Court has opined that in the absence of acceptable evidence by any of the brothers and sisters of Kupendra Koralli, it is not possible for the Court to accept that the third plaintiff herein is the second wife of Kupendra Koralli in the said proceedings. Though, no appeal is filed by the plaintiffs herein in the said appeal, the fact that the admission of defendants in the said proceedings that third plaintiff is second wife of Late Kupendra Koralli and plaintiffs 1 and 2 are his children through third plaintiff is sufficient to confirm the relationship of plaintiffs 1 to 3 to deceased Kupendra Koralli. Though the said confirmation may not enure to the benefit of third plaintiff as she being the second wife may not be entitled to any share in the property of deceased Kupendra Koralli at par with that of this first wife-second defendant herein. Nevertheless, the said admission by defendants 1 and 2 would definitely enure to the benefit of plaintiffs 1 and 2, who are the children of deceased Kupendra Koralli. 13. It is true that plaintiffs 1 and 2 being the children of deceased Kupendra Koralli through his second wife may not be entitled to seek partition of suit schedule property in view of the restriction imposed under Section 16(3) of the Hindu Marriage Act, 1955. But in the instant case, at an undisputed point of time in the year 1996, that is during the life time of Kupendra Koralli, there appears to be a partition, which has come into existence as accepted by the defendants 1 and 2 herein and it is also seen in the said partition, a portion of property was allotted to the share of plaintiffs 1 and 2. Defendants 1 and 2 herein being aware of that have taken it as one of the ground in this appeal. Defendants 1 and 2 herein being aware of that have taken it as one of the ground in this appeal. As could be seen from the evidence of PWs.2 and 3, who are none other than the brothers of Late Kupendra Koralli have stated that the said partition is given effect and the parties have acted upon that and plaintiffs 1 and 2 are in possession, cultivation and enjoyment of said lands. According to the said witnesses, defendants are also aware of that. 14. Therefore, in view of the said partition, it is seen that Kupendra Koralli has made provision for his children-plaintiffs 1 and 2 during his life time. The said partition is not challenged by the defendants herein either in this suit or earlier suit. Infact, in this appeal, they have urged that the earlier partition is not considered by this Court. 15. However, so far as the suit schedule properties are concerned, the same is being ancestral property, rightly contended by defendants plaintiffs cannot file a suit for partition and seeks for a share in the said property. The plaintiffs 1 and 2 being the children of Kupendra Koralli through his second wife, they would be entitled to seek a share in the personal assets of Kupendra Koralli i.e., the retirement benefits which were received by the second defendant in P & SC No.2/2003. Though, the second defendant has secured an order from the Court below declaring herself as the person entitled for grant of Succession Certificate to receive the aforesaid terminal benefits of deceased Kupendra Koralli, she is not entitled to appropriate the said benefit for herself. Her right to receive the said amount is similar to that of a right of nominee. She is answerable to the claim of other persons having right in the said asset. Accordingly, all the heirs of deceased Kupendra Koralli, including his children through second wife will have right to receive their share in that property. In the instant case, plaintiffs 1 and 2 being the children of deceased Kupendra Koralli through his second wife will have a share in the said amount though the same is not included in the schedule to the suit for partition. Since the plaintiffs have sought for grant of any other relief, they are entitled to in this suit. In the instant case, plaintiffs 1 and 2 being the children of deceased Kupendra Koralli through his second wife will have a share in the said amount though the same is not included in the schedule to the suit for partition. Since the plaintiffs have sought for grant of any other relief, they are entitled to in this suit. This Court is of the opinion that the plaintiffs 1 and 2 have a share in the terminal benefits of Late Kupendra Koralli received by second defendant pursuant to orders passed in P & SC No.2/2003. 16. As rightly contended by the defendants plaintiffs 1 and 2 will not be entitled to any share in the ancestral property of deceased Kupendra Koralli and they would not be entitled to file a suit for partition to seek a share in the Joint Family property of Kupendra Koralli as contemplated under Section 16(3) of the Hindu Marriage Act, 1955. In this behalf, defendants have relied upon the decision rendered by the Apex Court in the matter of Bharatha Matha & Anr. V. R. Vijaya Renganathan & Ors. reported in 2010 AIR SCW 3503, wherein, it is held as under:- “28. In the instant case, respondents had not pleaded at any stage that the Suit land was a self acquired property of Muthu Reddiar. It is evident from the record that Muthu Reddiar did not partition his joint family properties and died issueless and intestate in 1974. Therefore, the question of inheritance of coparcenery property by the illegitimate children, who were born out of the live-in-relationship, could not arise. Thus, the judgment of the High Court is liable to be set aside only on this sole ground.” 17. However, in the instant case, the facts and circumstances being slightly different from the facts and circumstances of the aforesaid Judgment. The plaintiffs would be entitled to claim the portion of the property that was partitioned by Kupendra Koralli during his life time granting a share to plaintiffs 1 and 2 in a portion of his property. However, in the instant case, the facts and circumstances being slightly different from the facts and circumstances of the aforesaid Judgment. The plaintiffs would be entitled to claim the portion of the property that was partitioned by Kupendra Koralli during his life time granting a share to plaintiffs 1 and 2 in a portion of his property. Plaintiffs 1 and 2 herein would be entitled to the land which is given to their share by Kupendra Koralli during his life time and also they are entitled to a share in the terminal benefits which has accrued to his estate as it is not his ancestral property, plaintiffs No.1 and 2 would be entitled to a share in the said amount as children of void marriage, as contemplated under Section 16(1) & 2 of the Hindu Marriage Act, 1955. 18. Accordingly, the Judgment and Decree dated 7.10.2006 passed in O.S.No.10/2006 on the file of Civil Judge [Sr.Dn.] at Aland, is modified holding that the plaintiffs 1 and 2 would not be entitled to seek partition of suit schedule ‘A’ & ‘B’ properties as the same being the ancestral properties of deceased Kupendra Koralli. However, while reversing the said finding of the Court below, this Court confirm that the said reversal would not come in the way of plaintiffs claiming exclusive right to the share in the property which was given to plaintiffs 1 and 2 by their father Kupendra Koralli during his life time under partition effected in the year 1996 and further the right to seek a share in the terminal benefit received by second defendant pursuant to the Succession Certificate granted in her favour in P & SC No.2/2003. The plaintiffs would be entitled to work out the said relief in the FDP proceedings to be filed pursuant to the Judgment and Decree dated 7.10.2006 passed in O.S.No.10/2006 on the file of Civil Judge [Sr.Dn.] at Aland. In the light of aforesaid discussions, the Court after hearing FDP proceedings shall pass necessary orders for deciding the share of the plaintiffs 1 and 2, in the retirement benefits accrued to the estate of deceased Kupendra Koralli. Also their right to enjoy the share allotted to them in the partition effected by Kupendra Koralli in the year 1996. 19. In the light of aforesaid discussions, the Court after hearing FDP proceedings shall pass necessary orders for deciding the share of the plaintiffs 1 and 2, in the retirement benefits accrued to the estate of deceased Kupendra Koralli. Also their right to enjoy the share allotted to them in the partition effected by Kupendra Koralli in the year 1996. 19. In the result, the appeal is allowed in part modifying the Judgment and Decree dated 7.10.2006 passed in O.S.No.10/2006 on the file of Civil Judge [Sr. Dn.] at Aland, without any order as to costs.