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2011 DIGILAW 805 (KAR)

Kempegowda v. Murthy

2011-08-10

K.GOVINDARAJULU, MOHAN M.SHANTANAGOUDAR

body2011
JUDGMENT MOHAN SHANTANAGOUDAR, J.—This appeal is filed by the original defendants 1 to 3 against the judgment and decree dated 28.2.2007, passed in O.S. No. 61/2006, by the Principal Civil Judge (Senior Division), Ramanagaram. 2. For the purpose of convenience, the parties are referred to as per their ranking in the Trial Court. 3. The genealogy of the family is as under: Venkategowda (dead) Devamma (1st wife-dead) Ningamma (2nd wife-dead) Ningegowda Thimmakka Maradevamma Devamma Kempegowda (Son-dead) (dead) (dead) (dead) (def. No. 1) Gowrama Gowramma Ningamma (Wife-dead) (1st wife-Def. No. 3- no issues) (2nd wife) 1st Murthi 2nd Rathnamma 3rd Sarojamma K. Jagadish Pushpalatha (Plaintiff) (Def. No. 4) (Def. No. 5) (Def. No. 2) 4. The propositus Venkategowda died in the year 1967 leaving behind his two wives and children. Devamma is the first wife and the Ningamma is the second wife of Venkategowda. Devamma has got a son by name Ningegowda. Devamma as well as Ningegowda are no more. The plaintiff, defendant No. 4 and defendant No. 5 are the son and the daughters respectively of Ningegowda. The second wife of Venkategowda viz., Ningamma had got three daughters and a son. Three daughters, viz., Thimmakka, Maradevamma and Devamma are no more. Son of Ningamma is Kempegowda (defendant No. 1) Kempegowda’s first wife is Gowramma. She is defendant No. 3 in the suit. The second wife of Kempegowda is Ningamma. Said Ningamma has got a son by name Jagadish (defendant No. 2) and a daughter by name Pushpalatha. 5. Ningegowda, the first son of Venkategowda born through Devamma relinquished his share in the joint family in favour of defendant No. 1, by then, the plaintiff was born to Ningegowda. The relinquishment deed is at Ex. D1, dated 25.11.1958 and the same is registered, The plaintiff was denied partition by the defendants. Hence, he filed a suit for partition and separate possession alleging that all the suit schedule properties are joint family properties and that he is entitled to ½ share in the properties. 6. The suit is opposed by defendants 1 to 3 on the ground that the plaintiff does not get share, inasmuch as his father Ningegowda has relinquished his share in the properties by executing relinquishment deed as per Ex. 6. The suit is opposed by defendants 1 to 3 on the ground that the plaintiff does not get share, inasmuch as his father Ningegowda has relinquished his share in the properties by executing relinquishment deed as per Ex. Dl in favour of defendant No. l; as the plaintiff has become sanyasi and renounced the world, he is not entitled to any share in the joint family properties; certain of the properties viz, suit item No. 8 of Schedule-I and Item Nos. 1 to 3 of Schedule-II are self acquired properties of defendant No. l; hence the plaintiff would not get share in those properties. Defendants 4 and 5 have supported the case of the plaintiff. 7. Based on the aforesaid pleadings, the Court below, framed the following issues: 1. Does the plaintiff prove that all the suit properties are joint family properties as alleged? 2. Does the 1st defendant prove the relinquishment of share in the joint family properties by the plaintiffs father on 25.11.1958 as alleged? 3. Does the plaintiff prove his half share in the sustained as claimed? 4. Whether the plaintiff is entitled for relief of partition and separate possession and also mesne profits as prayed? 5. What order or Decree? 8. In support of his case, the plaintiff examined six witnesses and got marked 42 documents, On behalf of defendants, five witnesses were examined and 62 documents were got marked. On the basis of the material on record and on hearing, the Court below has decreed the suit in part granting 1/4tn share in all the suit properties in favour of the plaintiff and remaining 3/4m share in favour of defendants 1 to 3. 9. Shri R.S. Ravi and Shri Prasad Hegde appearing on behalf of the appellants submit that propositus Venkategouda died in the year 1967. Father of the plaintiff namely Ningegouda refinquished his share in the properties in favour of the defendant. The defendants 1 to 3 purchased certain of the suit schedule properties out of their self earned money and, therefore, the Court below is not justified in holding that the properties are joint family properties and are liable to be divided. They further submit that Sy. Nos. 125, 126, 127, 159 and 160 belong to defendants 1 to 3 exclusively inasmuch as occupancy rights are granted in favour of defendant No. l by the Land Tribunal exclusively. They further submit that Sy. Nos. 125, 126, 127, 159 and 160 belong to defendants 1 to 3 exclusively inasmuch as occupancy rights are granted in favour of defendant No. l by the Land Tribunal exclusively. For these among other grounds Advocate on behalf of the appellants argue for allowing the appeal, 10. The appeal is opposed by Shri Gouthamdev Uilal appearing on behalf of respondent No. l (plaintiff). He has argued in support of the Judgment of the Court below by contending that the trial Court has rightly concluded that the properties purchased in the name of defendants 1 to 3 and the lands over which the occupancy rights are granted by the Land Tribunal are all joint family properties and, therefore, the same are liable to be divided. 11. In view of the rival contentions of the learned Advocates, the following points arise for consideration in this appeal; (a) Whether the properties purchased in the name of defendants 1 to 3, after the death of Venkategouda are the self-acquired properties of defendants 1 to 3? (b) Whether the Land Tribunal has granted occupancy rights in respect of certain of the suit schedule properties exclusively in favour of defendant No. 1? (c) Whether the trial Court is justified in concluding that Sy. Nos. 125, 126, 127, 159 and 161 are liable to be divided between the parties by-treating them as joint family properties? 12. It is not in dispute that the plaintiff’s father Ningegouda executed a registered relinquishment deed in favour of defendant No. 1 as per Ex. D.1 on 25.11.1958. The said document is rightly held to be valid by the trial Court. Under the said deed, the plaintiffs father has relinquished his share in the joint family properties. At the time of such relinquishment, the plaintiff was already born. Thus, the plaintiff also was a coparcener as on 25.11.1958. In this view of the matter, the trial Court has rightly concluded that the father of plaintiff could have relinquished his share only and not the share of the plaintiff and consequently, the trial Court is justified in concluding that the plaintiff is also entitled to 14 share in the joint family properties. 13. It is relevant to note the averments made in the relinquishment deed - Ex. 13. It is relevant to note the averments made in the relinquishment deed - Ex. D1 which read thus; (vernacular matter not given) The aforementioned averments clearly reveal that the properties belong to the joint family and the family continued even after the relinquishment of the share by the plaintiffs father . In Ex. D1, Ningegouda has specifically mentioned that the properties belong to the joint family and the joint family should continue in future. He has requested the defendant No. l to manage and protect the family properties. By the said deed, Ningegouda entrusted the management of the family properties in favour of defendant No. l. Thus, it is clear that defendant No. l was the Manager of the joint Hindu Family at least after 25.11.1958 (the date of relinquishment deed), 14. It is not in dispute that item No. 8 in Schedule I is an agricultural land and the same is purchased on 24.7.1995 in the name of the defendant No. 2, Item No. 5 is a site and the same is purchased on 6.11.1975 in the name of defendant No. l. Item No. 6 under Schedule II is also a site and the same was purchased on 10.7.1978 in the name of the defendant No. l. Item No. 7 in Schedule II is an agricultural land measuring 2 acres 20 guntas and the same is purchased in the name of defendant No. 3 on 3.10.1988. Thus, it is dear that all the aforementioned purchases were made in favour of defendants 1 to 3 after 1958. There is nothing on record to show that the parties divided themselves and there was severance of status among the family members, till this day. In view of the same, it is abundantly clear that the purchases were made in the names of defendants 1 to 3 during the subsistence of joint family. Thus, heavy burden lies on defendants to prove that the properties were purchased out of their own earnings. Admittedly, the family is agriculturists family. They do not have any other avocation other than agriculture. There is nothing on record to show that the defendants 1 to 3 had separate earning apart from the earning from the joint family properties. Even under Ex. Admittedly, the family is agriculturists family. They do not have any other avocation other than agriculture. There is nothing on record to show that the defendants 1 to 3 had separate earning apart from the earning from the joint family properties. Even under Ex. D1, the plaintiffs father has requested the defendant No. l to continue with the joint family and that he should take care of the joint family and manage the family affairs. In this view of the matter, the trial Court is justified in concluding that the aforementioned properties were purchased in the names of the defendants 1 to 3 by defendant No. l as a manager of the joint family, out of the family funds. 15. The lands bearing Sy. Nos. 125, 126, 127, 159 and 160 (Items 1 to 3 in Schedule II and Item Nos. 1 to 3 in Schedule III) are all agricultural lands. They were the subject matters of tenancy. Defendant No. 1 had filed form No. 7 for grant of occupancy rights. The Land Tribunal has granted occupancy rights in favour of defendant No. l. According to the defendant No. 1, the lands are granted exclusively in his favour and, therefore, other members do not have any share in the said properties. The said contention of the defendant No. l is justifiably rejected by the Court below. In the cross-examination, defendant No. l has admitted that his father (i.e., Venkategouda propositus) was cultivating the properties since long period of time and after his demise, he started cultivating the properties. Thus, it is clear that earlier late Venkategouda was cultivating the properties and after his demise, the defendant No. l started cultivating the property, which means that the tenanted properties were being cultivated by the ancestor of the plaintiff and defendant No. l. The defendant No. l did not take those lands on lease. But the family was cultivating the properties since beginning as tenant. Ex. P37 is the statement of defendant No. l before the Land Tribunal. Defendant No. l has clearly deposed therein that his father was cultivating those properties as a tenant earlier and subsequently, he started cultivating those properties. These facts amply make it clear that defendant No. l has inherited tenancy rights as a member of the joint family. As aforementioned, the defendant No. l was the Manager of the joint family. Defendant No. l has clearly deposed therein that his father was cultivating those properties as a tenant earlier and subsequently, he started cultivating those properties. These facts amply make it clear that defendant No. l has inherited tenancy rights as a member of the joint family. As aforementioned, the defendant No. l was the Manager of the joint family. Thus, as a Manager, he has filed form No. 7 for grant of occupancy rights. Hence, the trial Court is justified in concluding that occupancy rights are granted for and on behalf of the joint family and consequently, the plaintiff has got a share in the said properties also, 16. The trial Court has appreciated the material on record in proper perspective. No other point is urged before us. Even on re-consideration of the material on record, we do not find any ground to interfere with the impugned Judgment and decree. Accordingly, the appeal fails and the same is dismissed.