Research › Search › Judgment

Karnataka High Court · body

2012 DIGILAW 133 (KAR)

Sangappa Ramappa Jampur v. Honnappa

2012-02-16

B.V.PINTO, D.V.SHYLENDRA KUMAR

body2012
Judgment D.V. Shylendra Kumar, J. 1. Plaintiff in O.S.No.42/1998 on the file of the court of Civil Judge (Sr.Dn.), Prl. JMFC at Ranebennur is the appellant u/s 96 of the Code of Civil Procedure. 2. Suit was one for partition of the joint family properties impleading the elder brother 0.of the plaintiff as the 1st defendant; elder sister of the plaintiff as the 2nd defendant, daughter of the 2nd defendant as the 3rd defendant and the step mother of the plaintiff as the 4th defendant Plaintiff had claimed half share in the suit schedule properties and it is not in dispute that suit items 1A1 and 1A2, the two parcels of agricultural land abutting one another had been purchased in the name of the 1st defendant. The first purchase was on 02.05.1945 when the 1st defendant was a minor and the mother of the 1st defendant acting as guardian of the minor and the second purchase was on 28.05.1969 when the 1st defendant had attained majority by that time. 3. In respect of suit schedule 1D item, the plaintiff pleaded the though the khatha in the revenue records in respect of this land stood in the name of the 3rd defendant, it is also a joint family property having been purchased by the father of the plaintiff and defendants 1 and 2 in the name of his second wife i.e., the 4th defendant from out of the family funds and therefore remained a family property. 4. The genealogy of the family is as under: PROPOSITUS PUTTAVVA -RAMAPPA -GANGAVVA (1st wife) (died prior to suit) (2nd wife) (died) not party not party (4th defendant died during the trial of the suit and deleted) HONNAPPA CHENNAVVA SANGAPPA (1st defendant) (2nd defendant) (Plaintiff) (daughter) GANGIMALAVVA (3rddefendant) 5. The 1st defendant filed the written statement denying the plaint averments but for the purpose of the present appeal, it is only the dispute relating to the status of suit items 1A1 and 1A2 which is material as the 1st defendant asserted these two suit items to be his self-acquired properties and therefore not liable to be included for partition amongst the members of the family and as a part of joint family properties. 6. Other defendants, adopted the statement filed by the 1st defendant. In this background, learned Judge of the trial Court framed the following issues and one additional issues: “1. 6. Other defendants, adopted the statement filed by the 1st defendant. In this background, learned Judge of the trial Court framed the following issues and one additional issues: “1. Whether the plaintiff proves the suit properties are joint ancestral properties of the plaintiff and defendant No.1 as contended? 2. Does he further prove, deceased Ramappa had purchased suit 1A-1 and 1A-2 properties out of joint family fund nominating in the name of defendant No.1 as alleged? 3. Whether plaintiff further prove, those suit 1A-1 and 1A-2 lands were being enjoyed by all jointly though sale deed are in the name of defendant No.1? 4. Does the plaintiff prove, deceased Ramappa purchased suit 1B land in the name of D-4 out of joint family income and the said land was being enjoyed jointly? 5. Whether plaintiff is entitled for partition in all suit properties as prayed? 6. Whether defendant No.1 proves suit 1A-1 and 1A-2 lands are his self acquired properties? 7. Whether the defendants prove suit 1D land is exclusive property of defendant No.4? 8. Whether suit is bad in law for non-inclusion for RS.No.39/3 of Chikkanaji as contended? 9. What decree or doer? Additional Issue: 1. Whether 1st defendant proves that, the plaintiff is not the owner and possessor of the suit schedule-C (2) property by virtue of will deed dated 30.01.1995?” Parties went to trial on these issues. 8. On behalf of the plaintiff, apart from stepping into the box. The plaintiff examined two other witnesses as PWs-2 and 3 and got marked documentary evidence Ex.P.1 to Ex.P.19, essentially comprising of extract of revenue records, house tax receipts and other related copies of revenue records. 9. On behalf of the defendants, the 1st defendant deposed as DW-1 and another witness by name Ningappa S/o Ningappa Immadi was examined as DW-2. Documentary evidence comprised of Ex.D.1 to Ex.D.5 mutation extracts and Ex.D.6 and 7 orders in proceedings before the revenue authorities. 10. 9. On behalf of the defendants, the 1st defendant deposed as DW-1 and another witness by name Ningappa S/o Ningappa Immadi was examined as DW-2. Documentary evidence comprised of Ex.D.1 to Ex.D.5 mutation extracts and Ex.D.6 and 7 orders in proceedings before the revenue authorities. 10. The learned Judge of the trial Judge appreciating such evidence on record answered issue No.1 partly in favour of the plaintiff, issues 2 and 3 in the negative, issue No.4 in the affirmative, 5th issue partly in the affirmative, 6th issue in the affirmative and issue Nos.7 and 8 and additional issue No.1 in the negative and therefore decreed the suit in part holding that except for suit items 1A1 and 1A2, rest of the suit schedule properties are to be shared equally between the plaintiff and the 1st defendant. It is against this judgment and decree, the present appeal. 11. Appearing o behalf of the appellant, submission of Sri.Avinash Banakar, learned counsel is that the trial Court has committed an error in recording a finding that suit items 1A1 and 1A2 are self-acquired properties of the 1st defendant, that the 1st defendant was hardly of the age of three to four years at that time (seven or eight years as contended by the learned counsel for the respondents); that he could not have earned any income to himself and it is only his father who had contributed the consideration for the purchase and that the 1st defendant not having any independent income even after attaining majority, consideration is only from out of the earnings of the family properties and therefore these properties should have been held as forming part of joint family properties and plaintiff given a share in these two parcels of land also. 12. It is also submitted that the presumption in respect of the property while the family is joint is in favour of the property being part and parcel of the joint family though it may stand in the name of any individual member of the family and the 1st defendant having not rebutted or got over this presumption, the learned Judge of the trial Court has committed an error in recording a finding that it is self-acquired properties of the 1st defendant. So far as this appeal is concerned, no other ground is urged. 13. So far as this appeal is concerned, no other ground is urged. 13. Both the appellant and the 2nd defendant had made applications for filing additional documents by filing applications under Order XLI Rule 27 of the Code of Civil Procedure and the applications came to be ordered. While on behalf of the plaintiff/appellant, copies of sale deeds dated 02.05.1945 was marked as Ex.P.20 and subsequent sale deed defendant 28.05.1969 has been marked as Ex.P.21, likewise, on behalf of the defendants, the revenue receipts and revenue extracts in respect of the subject lands covered by the two sale deeds are marked as Ex.D.8 to Ex.D.13 being in the nature of documentary evidence. These documents were marked by consent of both counsel. 14. Sri. Kadibagil, learned counsel for the 2nd defendant submits that in so far as the finding relating to suit items 1A1 and 1A2 being joint family properties or self-acquired properties of the 1st defendant, it has been fully examined by the learned Judge of the trial Court, that on the material, the learned Judge was fully satisfied that the property in fact was purchased and continued to stand in the name of the 1st defendant and that the father had purchased the property even during the minority of the 1st defendant. While drawing attention to the evidence of DWs-1 and 2, learned counsel submits that consideration of Rs.500/-was from out of the earnings and savings of defendant No.1 who had worked as a Child Labour while staying in his maternal grant-parent’s house. This evidence of DWs-1 and 2 is not seriously challenged, that the landed property under second sale deed of the year 1969 Ex.P.21 was purchased for a sum of Rs.2,000/-from out of the earnings of the 1st defendant who had attained majority by then and who had his own income etc., Therefore, no need for disturbing this finding of the trial Court. 15. Mr. 15. Mr. I.C. Patil, learned counsel appearing for 3rd respondent/3rd defendant in the suit submitted that so far as this respondent is concerned, the revenue records in respect of suit item ID stood in her name, that it was a property which belonged to the 4th defendant and had been purchased by her during her life time, that the learned Judge of the trial Court is in error in concluding this also as a family property and therefore to this extent, the finding on issue No.5 warrants correction. 16. Mr. Patil, also submits that this defendant had never been served and the matter having proceeded exparte on the premise that she has been served, has made an application for setting aside the exparte decree against her and it is still pending consideration before the Court below in Civil Misc. No.1/2007 in the Court of Civil Judge (Sr.Dn.). Hirekerur. 17. However, in so far as the sharing ratio is concerned, Mr. Kadibagil, learned counsel for the 1st defendant has pointed out that the learned Judge of the trial Court has committed an error in law in holding that the plaintiff and the 1st defendants are entitled for half share each in the joint family property and he has totally ignored the factum that the father of the plaintiff and defendant Nos.1 and 2 being member of the family who had expired in the year 1996, his share in the properties did not devolve on other male members of the family but has to go by succession in terms of the provisions of the Hindu Succession Act; that the learned Judge of the trial Court has not been examined at all this legal position and therefore the judgment and decree in so far as it relates to sharing ratio of the property is concerned, requires correction particularly as it is not in dispute that the 2nd defendant is the sister of the plaintiff and the 1st defendant and the position/status of the 2nd defendant having been considerably enhanced to attain the status of a coparcener on and after amendment to Section 6 of the Act by Central Act No.39/2005. He further submits that even though the respondents have not appealed, to this extent, the judgment and decree calls for a correction to indicate the correct entitlement of parties i.e., members of the family as per the law as it prevails on the day as such correction is within the scope of an appeal under section 96 of the Code of Civil Procedure even the defendants have not appealed against the decree of the Court below. 18. We have given our anxious consideration to the submissions made at the bar, perused the judgment and examined the records. The points that arise for our determination in this appeal are: “i) Whether the finding of the learned trial judge holding that suit items 1A1 and 1A2 are the self-acquired properties of the 1st defendant is sustainable or whether calls for interference? ii) Whether the sharing ratio as indicated by the trial judge requires any correction in the light of the legal position or the law as it stands on the day 19. In so far as the finding relating to question of suit items 1A1 and 1A2 being the self-acquired properties of the 1st defendant or the join family properties of the family is concerned, it is examined by the trial judge on issued Nos.2, 3 and 6. While, issue Nos.2 and 3 have been held in the negative and against the plaintiff holding that the plaintiff has failed to prove that the 1st defendant had purchased suit items 1A1 and 1A2 from out of the family fund, it has been held on issue No.3 against the plaintiff holding that the plaintiff has not been able to prove these properties were being enjoyed as joint family properties and not as the very property of the 1st defendant as averred in the plaint. So far as issue No.6 is concerned, it is the other facet of issue Nos.2 and 3 only in the name of the defendant as to whether he proves that suit items 1A1 and 1A2 are his self-acquired properties and it has been held in favour of the 1st defendant. 20. In so far as the support for the findings on issue Nos.2 and 3 is concerned, it is in the evidence of DW-1 and 2. 20. In so far as the support for the findings on issue Nos.2 and 3 is concerned, it is in the evidence of DW-1 and 2. But, there is no evidence led on this aspect by the plaintiff and this is the reason why the learned Judge of the trial Court was left with no choice but to hold issue Nos.2 and 3 against the defendant. 21. While it is true that there could be a presumption that all properties are joint family properties but the property being acquired initially in the name of the 1st defendant and having continued to remain for long years in his enjoyment also being not as joint family property but as a separate property which is the material on record, it cannot be said that the learned Judge of the trial Court has committed any error in recording this finding against the plaintiff. 22. Though the plaintiff got marked the two sale deeds of the year 1945 and 1969, perusal of the recitals in the sale deed of the year 1969 only indicates that the property has all along been enjoyed as the property of the 1st defendant and it is indicated that the subject land in the second sale deed Ex.P.21 and the subject land in the earlier sale deed Ex.P.20 are adjacent lands. This provides intrinsic evidence to indicate that all along the 1st defendant has owned the properties as his own. In this view of the matter, we do not find any reason to reverse or alter the finding of the trail Court on this aspect namely that suit items 1A1 and 1A2 are the self-acquired properties of the 1st defendant. 23. That leaves us to consider the submission made by the learned counsel for the 3rd defendant/respondent. This defendant had been remained exparte before the trail Court and it is submitted that an application is filed for setting aside and it is still pending etc., 24. There is nothing on record to accept the submissions made at the bar. The records indicate that defendant Nos.2 and 3 had also adopted the statement filed by the 1st defendant and the learned trial Judge has disclosed this aspect while answering issue No.5. It is found that during his life time, the original propositus had purchased the suit item 1D in the name of the 4th defendant and the 4th defendant died issueless. It is found that during his life time, the original propositus had purchased the suit item 1D in the name of the 4th defendant and the 4th defendant died issueless. That after the death of 4th defendant, suit item 1D got mutated in the name of 3rd defendant but there is nothing on record to indicate that it is due to a transfer of the property to the 3rd defendant etc., In this view of the matter, it cannot be said that the property was in the name of the 3rd defendant to contend that it was separate property. The learned Judge of the trial Court has rightly observed that the 3rd defendant does not even become the heir of the 4th defendant. The revenue entries in her name does not conclude that it is the property of the 3rd defendant. Be that as it may, we find no need to disturb the finding of the trial Court on this aspect. 25. That leaves us with the question of the sharing ratio as indicated by the learned Judge of the trial Court i.e., plaintiff and 1st defendant sharing half share each as per law or warrants correction. 26. The relationship amongst the parties is not in dispute. The suit was filed in the year 1998 and it is on record that the father of the plaintiff and defendant Nos.1 and 2, the propositus of the family died in the year 1996. If so, on the death of their father who was a member and the head of the general family at that time, his share in the joint family property does not go by devolution but has to go by succession as at the time of his death he has left behind two female heirs namely his wife (4th defendant) and his daughter (2nd defendant) of Class 1. 27. If so, on the basis of notional partition to take place in terms of Section 6, the joint family properties are to be partitioned in three equal shares and while 1/3rd share of the father goes by succession, the remaining 2/3rd continues to be joint family property. 27. If so, on the basis of notional partition to take place in terms of Section 6, the joint family properties are to be partitioned in three equal shares and while 1/3rd share of the father goes by succession, the remaining 2/3rd continues to be joint family property. The 1/3rd share of the father has to be shared equally amongst his Class 1 heirs namely the plaintiff, defendant Nos.1,2 and 4 in which event each of them get 1/4th of the 1/3rd i.e., 1/12th share in the joint family properties which are available for being partitioned. 28. However, there is another development in law namely the provisions of Section 6 of the Hindu Succession Act having been amended by Central Act No.39/2005 whereby a daughter is also taken to be co-parcener in the family and as the sharing ratio is being finalised in terms of this appeal now, as of now, the daughter becomes a co-parcener and in respect of the 2/3rd share of the joint family properties, there are three coparceners an on date, namely the plaintiff, the 1st defendant and the 2nd defendant. Therefore, the remaining 2/3rd share of the joint family properties which had continued to be joint as on day has to be shared on partition amongst the three co-parcener in equal measure i.e., 1/3rd of 2/3rd each by plaintiff, the 1st defendant and the 2nd defendant. The 4th defendant also having expired during the pendency of the proceedings, her share goes by succession in favour of the plaintiff and defendant Nos.1 and 2 get 1/3rd each of her 1/12th share in the joint family properties. 29. Accordingly, the judgment and decree of the trial Court while is to be sustained in so far as its finding on facts etc., is concerned, in so far as the sharing ratio is concerned, though the respondents are not in appeal and it s only the plaintiff who is in appeal for augmenting his share, unfortunately for the plaintiff, his share does not get augmented but gets diminished as under: 1/3x2/3+1/12+1/3x1/12=1/3rd. 30. Ultimately, sharing ratio will be 1/3rd each in favour of the plaintiff and defendant Nos.1 and 2 from out of the properties available for partition in the joint family property. The judgment and decree of the trial Court is modified to this extent in so far as the sharing ratio is concerned. 30. Ultimately, sharing ratio will be 1/3rd each in favour of the plaintiff and defendant Nos.1 and 2 from out of the properties available for partition in the joint family property. The judgment and decree of the trial Court is modified to this extent in so far as the sharing ratio is concerned. In other aspects, it is confirmed. Point Nos. 1 and 2 are answered accordingly. The appeal is disposed of accordingly, Parties to bear their respective costs throughout.