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2011 DIGILAW 834 (KAR)

Kamala M. v. Puttathayamma @ Lakshmamma

2011-08-17

K.GOVINDARAJULU, MOHAN M.SHANTANAGOUDAR

body2011
JUDGMENT MOHAN SHANTANAGOUDAR, J.—This appeal is filed by the unsuccessful plaintiffs against the judgment and decree dated 4th July 2007f passed in O.S. No. 6161/2002 by the learned XVII City Civil Judge, (CCH. No. 32), Bangalore City. For the sake of convenience, the parties are referred to as per their respective ranks before the trial Court. 2. The suit was filed by the appellants herein (plaintiffs) for partition and separate possession of six items of the properties, more fully described in the schedule of the plaint, The family genealogy is found in paragraphs of the plaint. The same makes it clear that Kariyappa was the propositus, He died leaving behind Muddanna (1st defendant) and another son (he is not a party to the suit), Muddanna had two wives viz., Lakshmamma (died) and Puttathayamma (3rd plaintiff). Defendants 2, 3 and 4 are born to Muddanna through Lakshmamma, whereas, plaintiffs and defendants 5 and 6 are born to Muddanna through Puttathayamma, According to the plaintiffs, all the suit schedule properties are joint family ancestral properties. Therefore, they have got share in the properties. Since they are denied share in the properties in question, the suit came to be filed by them for partition and separate possession. 3. According to the plaintiffs, some of ancestral properties were sold by 1st defendant and out of such sale proceeds, all the suit properties are purchased, including the agricultural land bearing Survey No. 122 of Rarnohaili village, Kengeri Hobfi, Bangalore South Taluk, Item No. 5 of the schedule consists of Gold and Cash in bank. The sum and substance of the case of the plaintiffs is that all the suit schedule properties are ancestral joint family properties of the parties and, therefore, they have got share in the properties. 4. Defendant No. l alone has filed the written statement denying the case of the plaintiffs, According to defendant No. l, all the suit schedule properties, except item No. 6, were the self acquired properties of Muddanna; Muddanna had got only one acre of land which was sold by him in the year 1964 and at that point of time, the plaintiffs were not even born; due to his hard work as a coolie, he accumulated wealth and out of such self earnings, Muddanna purchased the suit schedule properties, i.e., item Nos. 1 to 4. 1 to 4. He further submits that item No. 6 property is a residential site purchased by defendant No. 2 on 12.9.1980 and, therefore, item No. 6 is the self acquired property of defendant No. 2; Deceased Muddanna executed two Wills on 28.6.2002 and on 9.7.2002 bequeathing the agricultural land bearing Survey No. 122 (Item No. 4) in favour of all the parties to the suit, including the plaintiffs; since item Nos. 1 to 4 are self acquired properties of defendant No. l, the plaintiffs cannot as of right get any share over the properties in question, Thus, he prayed for dismissal of the suit. 5. Defendants 2 and 4 have filed additional written statement contending, that item No. 6 of the suit schedule property was the self acquired property of defendant No. 2 and the said property was purchased on 12.9.1980 out of his self earnings and, therefore, the other members of the family have no share in the said property. 6. Based on the pleadings of the parties, the trial Court framed the following issues: “1. Whether the plaintiffs prove that they and the defendants constitute joint Hindu undivided family? 2. Whether the plaintiffs prove that they are the suit schedule properties are the joint family properties of the parties to the suit? 3. Whether the plaintiffs prove that they are entitled to 1/8th share in the suit schedule properties and separate possession of the same by metes and bounds? 4. Whether the 1st defendant proves that the suit schedule properties are his self acquired properties? 5. To what reliefs are the parties entitled to? 6. To what order or decree?” The plaintiffs, in support of their case have examined two witnesses and got marked 14 documents. Four witnesses ‘were examined on behalf of the defendants in support of their case and got marked 4 documents. After hearing and after considering the material on record, the trial Court dismissed the suit holding that item Nos. 1 to 5 are self acquired properties of defendants 1 and 2 and item No. 6 is the self acquired property of defendant No. 2, Questioning the said judgment and decree, this appeal is filed. 7. After hearing and after considering the material on record, the trial Court dismissed the suit holding that item Nos. 1 to 5 are self acquired properties of defendants 1 and 2 and item No. 6 is the self acquired property of defendant No. 2, Questioning the said judgment and decree, this appeal is filed. 7. Sri N.R. Naik, learned counsel appearing on behalf of the appellants/plaintiffs submits that the Court below has totally ignored the admissions made by DW-1 (defendant No. 2) while coming to the conclusion; that there is nothing on record to show that the family had got only one land measuring 1 acre and that was sold in the year 1964; the joint family had got ancestral properties not only of their own, but also tenanted properties; that the lands bearing Survey Nos. 104/1, 104/2, 104/5 and 104/6 of Hosakerehalti village, were belonging to the joint family; those lands are acquired and compensation is deposited; in respect of some of the lands, the joint family was the tenant over which the occupancy rights were granted; that some of the ancestral properties are sold by defendant No. l in favour of Vishwabharathi Housing Co-operative Society and out of such sale proceeds, the suit properties are purchased by defendant No. l either in his name or in the name of defendant No. 2; and that the appreciation of the evidence by the Court below and the conclusion reached are not just and proper and, therefore, the judgment and decree is liable to be set aside, He further submits that the Wills Exs.D-1 and D-2 are created by the defendants only to suit their purpose; since all the properties are ancestral properties, it was not open for the defendant No. l to bequeath the properties as if they are his self acquired properties; the evidence of DWs,2 to 4 will not be of any help to the defendants, inasmuch as, there is lot of inconsistency in their evidence. On these among other grounds, Sri N.R. Naik, learned counsel argues for allowing the appeal. The appeal is opposed by Sri H.M. Sornashekaraiah, learned counsel appearing on behalf of defendants 2 and 3 (respondents 2 and 4) by supporting the judgment and decree passed by the trial Court. He submitted that, item Nos. On these among other grounds, Sri N.R. Naik, learned counsel argues for allowing the appeal. The appeal is opposed by Sri H.M. Sornashekaraiah, learned counsel appearing on behalf of defendants 2 and 3 (respondents 2 and 4) by supporting the judgment and decree passed by the trial Court. He submitted that, item Nos. 1 to 4 properties are the self acquired properties of defendant No. 1 and the only ancestral property which was measuring 1 acre was sold by defendant No. 1 as back as in the year 1964 and during the said period, none of the plaintiffs were born; the defendant No. 1 accumulated wealth out of his hard earning and out of such earnings, defendant No. 1 purchased all the suit items Nos. 1 to 4 and, therefore, it was open for the defendant No. 1 to execute the Will in favour of any person whomsoever he likes; item No. 6 property is the self acquired property of defendant No. 2, inasmuch as, he has purchased the said property on 12.9.1980 during the life time of his father out of is self earnings; after purchase, defendant No. 2 constructed the house and shops and is enjoying the said property to the exclusion of others; there is no bar for any of the joint family members to own of the property individually; that defendant No. 2 has purchased item No. 6 property out of his self earnings without depending on the joint family funds, On these among other grounds, he prays for dismissal of the appeal. 8. On the basis of rival contentions raised before this Court, the following points arise for consideration in this appeal. (a) Whether the Court below is justified in concluding that the parties to the suit are not the joint family members? (b) Whether the trial Court is justified in dismissing the suit for partition and separate possession holding that item Nos. 1 to 4 are the self acquired properties of defendant No. 1 and item No. 6 is the self acquired property of defendant No. 2? (c) Whether the Court below is justified in holding that the defendant No. l had got right to execute the Will in respect of Survey No. 122/1 in bequeathing the said property in favour of certain of the family members whose names are found in the Will? 9. (c) Whether the Court below is justified in holding that the defendant No. l had got right to execute the Will in respect of Survey No. 122/1 in bequeathing the said property in favour of certain of the family members whose names are found in the Will? 9. The trial Court is not justified in holding that the plaintiffs and defendants do not constitute joint undivided family. There is nothing on record to show that the family was divided at any point of time, It is nobody’s case that the family has divided at any point of time. On the other hand, it is the case of every party in the matter that all are brothers and sisters and that the division has not taken place. In the light of such admitted facts, the trial Court is not justified in concluding that the plaintiffs and defendants do not constitute joint Hindu undivided family. 10. As aforementioned, according to the plaintiffs, all the properties are joint family properties and according to the defendants, none of the properties are joint family properties. The defendants 1, 2 and 4 go a step further to contend that the only ancestral property which was measuring 1 acre was sold by defendant No. 1 as back as in the year 1964 during which period the plaintiffs were not even born and, therefore, there was no joint family nucleus for purchasing the properties, Such a case of the defendants is demolished by DW-1himself. DW-1 is none other than defendant No. 2, In his cross-examination, defendant No. 2 clearly admits that Survey Nos. 104/1, 104/2, 104/5 and 104/8 of Hosakerehalli village were the joint family properties and those properties were acquired by the State Government. He further admits that some of the properties were sold in favour of Mr. Krishna Bhat of Vishwabharathi Housing Co-operative Society and out of such sale proceeds, defendant No. 1 has performed the marriages and other functions in the family. He further admits that certain of the litigations relating to the properties are pending in the Apex Court. He specifically admits that defendant No. 1 and his uncle were not divided and they were living together. He knows that his father and his uncle have earned the properties jointly and both the brothers, i.e., defendant No. 1 and his brother were residing together in the same house. He specifically admits that defendant No. 1 and his uncle were not divided and they were living together. He knows that his father and his uncle have earned the properties jointly and both the brothers, i.e., defendant No. 1 and his brother were residing together in the same house. He specifically admits that there was no Partition Deed as such executed between defendant No. 1 and his brother. Further admission of DW-1 specifically goes to show that the plaintiff as well as defendants are members of the joint family. Alt the family members are residing at Avalahalli village since 15 to 18 years in the houses constructed over the property bearing Nos. 157 and 28. He further admits that all the family members used to go for work in Avalahalli village and the earnings so made by the family members were being handed over to defendant No. 1 and the defendant No. l was managing the family affairs. He specifically admits that defendant No. l was the manager of the joint family and all the family members used to intimate defendant No. l about all the dealings including purchase, improvements etc. He further admits that the properties which are standing in individual names of family members are all purchased out of the joint family funds and that they are ‘ the joint Family properties. He further admits that the land bearing Survey No. 122 is joint family property and the same measures 8 acres and not 14 acres, further he specifically deposes that item No. 6 property, i.e., the site No. 9 is his self acquired property and that he has purchased the same in the year 1980. He further deposes that all the family members are living jointly and that there is no partition at any point of time between the family members. These admissions amply reveal that all the properties, except item No. 6 are the joint family properties. None of the properties were purchased by defendant No. l out of his self earnings. These admissions clearly reveal that the family was owning number of agricultural lands since beginning and some of them were acquired and some of them were sold in favour of Vishwabharathi Housing Co-operative Society. None of the properties were purchased by defendant No. l out of his self earnings. These admissions clearly reveal that the family was owning number of agricultural lands since beginning and some of them were acquired and some of them were sold in favour of Vishwabharathi Housing Co-operative Society. Thus, the trial Court is not justified in accepting the case of the defendants 1 to 4 that defendant No. l was having only 1 acre of and which was sold in the year 1964. On the other hand, it is dear from the admissions of DW-1 that the family was well off and it was owning number of properties and out of sale proceeds of such properties, the suit schedule properties are purchased. 11. There is nothing on record to show that the family having only one acre of land and which was sold in the year 1964. Though the defendants have specifically pleaded so, the same is not substantiated by defendants 1 to 4 during the course of trial. Nothing is produced to show that only property measuring 1 acre was sold in the year 1964. In view of the above, it is more than clear that item Nos. 1 to 4 are the joint family properties of the parties. They are never divided. They have continued to be the joint family properties even after the death of defendant No. 1. 12. Since item Nos. 1 to 4 are the joint family properties of the family, it was not open for the defendant No. l to execute the Will in favour of any of the parties. Ex. D-1 is dated 28.6.2002. By the said Will, Survey No. 122/1 (item No. 4) measuring 8 acres 9 guntas was divided among the plaintiffs and some of the defendants to certain extent. Further another Will is executed as per Ex. D2 on 9.7.2002 bequeathing the very property, i.e., Survey No. 122/1 in favour of defendants 2, 3 and 6 only, i.e., the male members of the family. Since Ex. D-2 is subsequent to Ex. D-1, it is deemed that Ex. D-1 is revoked by defendant No. 1 while executing Ex. P2. Thus the plaintiffs are fully excluded under Ex. D2. Be that as it may, since defendant No. l did not have exclusive right over the suit property stem Nos. Since Ex. D-2 is subsequent to Ex. D-1, it is deemed that Ex. D-1 is revoked by defendant No. 1 while executing Ex. P2. Thus the plaintiffs are fully excluded under Ex. D2. Be that as it may, since defendant No. l did not have exclusive right over the suit property stem Nos. 1 to 4, he could not have bequeathed any property in favour of defendants 2, 3 and 6. 13. It is curious to note that defendant No. l had executed a Will as per Ex. P-5 on 11.12.1998 even prior to execution of the two Wills Exs.D-1 and D-2. Further the said Will Ex. P-5 dated 11.12.1998 came to be cancelled by execution of Cancellation Deed Ex. P-14 on 9.7.2002. In Ex. P-5, defendant No. l has described the nature of the properties under the said Will as the joint family ancestral properties. Of course, as aforementioned, the said Will was cancelled subsequently. But, the fact remains that the defendant No. l himself had described the nature of the properties as ancestral joint family properties, From the above, it is to be held that the defendant No. l could not have bequeathed any of the suit properties in favour of defendants 2S 3 and 6 by virtue of the Will Ex. D-2a 14. Item No. 5 is the movable property. There is nothing on record to show that as to how much gold ornaments and cash was available in the joint family. In the absence of such material on record, we deem it proper not to pass any decree in respect of item No. 5. 15. Item No. 6 is the site bearing No. 9 formed in Survey No. 45/7 of Avalahalli Village. The said property is purchased by defendant No. 2 through registered Sale Deed on 12.9.1980 as per Ex. P-4. After purchase, he has constructed the house and shops. He is enjoying the said property to the exclusion of others. Muddanna, i.e., defendant No. 1 expired on 7.3.2004, i.e., after 24 years of the date of purchase of site by defendant No. 2. The plaintiffs were born some where in the year 1973-74. P-4. After purchase, he has constructed the house and shops. He is enjoying the said property to the exclusion of others. Muddanna, i.e., defendant No. 1 expired on 7.3.2004, i.e., after 24 years of the date of purchase of site by defendant No. 2. The plaintiffs were born some where in the year 1973-74. The very fact that the defendant No. 2 has purchased the property as back as on 12.9.1980 and he has been enjoying the property exclusively, itself would go to show that defendant No. 2 himself has purchased the said property with the help of his self earnings. There is no bar for any of the joint family members to have self acquisition with the help of his self earnings. If the member of the joint family acquires property with the help of his self earnings and without the help of the joint family funds, such property continues in his hands as a self acquired property unless and until the purchaser blends such property with other joint family properties. It is relevant to note the admission of PW-2 in this regard, PW-2 has admitted that the defendant No. 2 is living separately since 20 years and is managing his family affairs separately. In this view of the matter, we conclude that the suit schedule property - item No. 6 is the self acquired property of defendant No. 2, The trial Court in that regard is justified in concluding so. 16. Since the properties at item Nos. 1 to 4 are the joint family properties and as the daughters are equally entitled to the share alongwith the sons, and the parties to the litigation will get equal share. Hence, the plaintiffs are entitled to 1/8th share each and so also, the defendants. Accordingly, the following order is made: (i) The judgment and decree passed by the Court below is set aside in respect of suit schedule item Nos. 1 to 4, The plaintiffs are entitled to 1/8th share each in respect of the suit schedule item Nos. 1 to 4, (ii) The suit in respect of item Nos. 5 and 6 stands dismissed. 17. The appeal is allowed in part (and suit is decreed in part) to the aforementioned extent in respect of item Nos. 1 to 4 of the suit schedule properties and it stands dismissed in respect of item Nos. 1 to 4, (ii) The suit in respect of item Nos. 5 and 6 stands dismissed. 17. The appeal is allowed in part (and suit is decreed in part) to the aforementioned extent in respect of item Nos. 1 to 4 of the suit schedule properties and it stands dismissed in respect of item Nos. 5 and 6 of the suit schedule properties.