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2012 DIGILAW 927 (KAR)

D. Shivakumar v. D. Shivaramu

2012-11-08

B.V.PINTO, K.SREEDHAR RAO

body2012
JUDGMENT B.V. PINTO, J.—This Regular First Appeal is filed by the plaintiff in O.S. No. 47/1994 challenging the Judgment dated 10.1.2005 passed by the Addl. Civil Judge (Sr. Dn)., at Ramanagaram, decreeing the suit filed by the plaintiff partly and holding that the plaintiff is entitled to the share which is allotted to him as given by his father under will and dismissing the suit insofar as the share in other items of the suit schedule properties. 2. The plaintiff filed a suit against defendants No. 1 and 2, who are his brothers and his sister-in-law seeking 1/3rd share in the suit schedule properties and also for mesne profits derived from the properties from the date of suit till its actual possession along with costs. It is the case of the plaintiff that himself and the defendants are the brothers. Their father by name Dasashetty was carrying on the business of sale of fruits in Kanakapura Town and that their father had acquired as many as 23 items of properties comprising of houses, lands, sites, movables etc., It is the case of the plaintiff that he was also running the fruit business along with the father and his father died on 1.7.1989 leaving behind a will dated 7.9.1977. It is the case of the plaintiff that even after the death of their father Sri Dasashetty, the plaintiff was working along with defendant No. 1 and was in possession and use of the suit schedule properties. It is the case of the plaintiff that defendant No. 1 with the help of the properties acquired by their father had further added to the properties and assets of their father which as on the date of filing accumulated as 23 items of properties. The plaintiff, therefore, filed a suit for share in all the said properties which according to him is 1/3rd of the entire suit schedule properties. 3. The defendants have filed written statement admitting the relationship and also the fact that their father Dasashetty was doing fruit business and has acquired various properties by doing the said business. It is the case of the first defendant that the plaintiff was a minor as on the date of death of their father and the first defendant has not only taken care of the plaintiff, but after securing a proper match for him has married the plaintiff. It is the case of the first defendant that the plaintiff was a minor as on the date of death of their father and the first defendant has not only taken care of the plaintiff, but after securing a proper match for him has married the plaintiff. The defendant has also got their sister married according to the wishes of their father as mentioned in the Will dated 7.9.1977 of late Dasashetty. It is also the case of the first defendant that the properties which were acquired by late Dasashetty have been bequeathed to the plaintiff as well as defendants No. 1 and 2 in equal share in the Will dated 7.9.1977 and the other properties mentioned in the suit schedule properties are acquired by the plaintiff by his own sweat and toil and not formed as the Hindu Undivided Family Property. It is the case of the first defendant that immediately after his marriage, the plaintiff has physically separated from the family and was residing separately with his wife. It is further the case of the defendant that the plaintiff had not taken care of his wife properly who is none other than the daughter of their own eldest sister, and that the plaintiff is living with another woman and he is leading an immoral life. It is further stated by the defendants that the plaintiff has deserted his own legally married wife and he is leading a unchasteful life with another lady. Hence, it is submitted by the defendants that the suit is liable to be dismissed except that the plaintiff is entitled to 1/3rd share as bequeathed to him in the Will of their father. 4. The trial Court based on these pleadings framed the following issues: (1) Whether the plaintiff proves that the suit schedule properties are the joint properties of plaintiff and defendants? (2) Whether the defendants prove that Items 3 to 5 and 7 to 9 and Item 12 of the suit schedule properties are the self acquired properties of the 1st defendant? (3) Whether the defendants prove that suit schedule items 10 and 11 are self-acquired properties of 2nd defendant? (4) What order or decree? 5. The plaintiff in order to prove his case has examined himself as PW.1 and produced documents as per Exs.P1 to P24. The defendants examined DWs.1 to 6 and produced documents as per Exs.D1 to D72. (3) Whether the defendants prove that suit schedule items 10 and 11 are self-acquired properties of 2nd defendant? (4) What order or decree? 5. The plaintiff in order to prove his case has examined himself as PW.1 and produced documents as per Exs.P1 to P24. The defendants examined DWs.1 to 6 and produced documents as per Exs.D1 to D72. After hearing the parties, the learned trial Court was pleased to hold that the plaintiff is entitled to the share according to the Will executed by late Dasashetty and declined to grant relief in respect of the other items of properties. The trial Court also further held that item Nos. 3 to 5, 7 to 19 and 22 of the suit schedule properties are self acquired properties of the first defendant and also further held that item Nos. 10 and 22 are the self acquired properties of the second defendant [who is the wife of late Balakrishna, brother of the plaintiff]. Being aggrieved by the said Judgment, the plaintiff has filed this appeal. 6. Heard Sri Srinivasa, learned Counsel for Sri N. Subbashastry learned Counsel appearing for the appellant; Sri D. Ramadas, learned Counsel appearing for R1, R2(a) & R4 and Smt. Anitha Ravindran, learned Counsel for R5 & R6. 7. Learned Counsel for the appellant submitted that the Judgment of the trial Court is not a speaking order insofar as the acquisition of the property by defendant Nos. 1 and 2 after the death of their father late Dasashetty is concerned. It is his submission that when Dasashetty died, the plaintiff was aged 16 years, defendant No. 1 was 23 years and defendant No. 2 was 20 years and that they had no independent income nor any avocation except taking part in the business of their late father. Hence, there cannot be any self-acquisition of assets by either defendant No. 1 or defendant No. 2 but the entire properties are acquired jointly by the plaintiff and the defendants, the nucleus being the assets of late Dasashetty. Hence, he submits that the properties purchased by defendant No. 1 in his name or in the name of his wife-defendant No. 4 is from the profits of business and the rents derived from the immovable properties of late Dasashetty. Hence, he submits that the properties purchased by defendant No. 1 in his name or in the name of his wife-defendant No. 4 is from the profits of business and the rents derived from the immovable properties of late Dasashetty. Hence, he submits that apart from the share mentioned in the Will of late Dasashetty, the plaintiff is also entitled to 1/3rd share in the properties acquired by the defendants out of the assets of late Dasashetty. 8. Learned Counsel for the appellant further submits that defendant No. 1 has not brought in any cogent or clear evidence, oral or documentary, to show that he was carrying on any independent business on and after the death of their father nor any income is shown as separate income in order to enable him to purchase suit schedule properties after the death of late Dasashetty. Hence, he submits that the entire properties required to be partitioned among the three brothers and the plaintiff is entitled to his share. It is also submitted by him that the plaintiff had married on 22.6.1988 and he had separated from the family only after his marriage and, therefore, the entire toil of the plaintiff is put into the business of late Dasashetty jointly by the plaintiff and defendant Nos. 1 and 2. The plaintiff never had any other independent avocation till he separated from the family and had started residing separately with his wife. In particular, it is his submission that item Nos. 2 & 3, 5, 6 & 7 have been purchased during the period when the plaintiff was living along with the defendants and thus the said properties ought to have been subjected to partition and a share ought to have been granted to the plaintiff. Insofar as item No. 6 is concerned, the property has been purchased on 20.3.1980 and it is in the joint name of the appellant and defendants No. 1 and 2 as evidenced in Ex.D57. Insofar as the property at Item Nos. Insofar as item No. 6 is concerned, the property has been purchased on 20.3.1980 and it is in the joint name of the appellant and defendants No. 1 and 2 as evidenced in Ex.D57. Insofar as the property at Item Nos. 2 & 3 which are purchased on 9.10.1985 as per Ex.D58 and the property at item No. 5 which is purchased on 27.1.1988 and on 3.9.1988 under two sale deeds as per Exs.D59 & D60, so also the property at item No. 7 which is purchased on 16.7.1980 as per Ex.D71 are required to be partitioned since they are purchased at the time when the plaintiff was residing along with the defendants in the family house. 9. Learned Counsel for the defendants submits that after the death of his father late Dasashetty-Defendant No. 1 was bearing the responsibility of the family and has not only managed the property left by his father but has also performed the marriages of the plaintiff and their sister by spending money from out of the income of the family property. It is further submitted by him that defendant No. 1, apart from carrying on the business of fruits was also carrying on the Chit Fund business and other avocations on his own and out of his toil he has purchased the other items of property, which are his self acquired properties and, therefore, the plaintiff cannot ask for any share in the said self acquired properties. It is further submitted by him that the trial Court has rightly held that the plaintiff is entitled to the share as per the Will of late Dasashetty and that there is no error or illegality committed by the trial Court in refusing the claim of the plaintiff in the properties other than that mentioned in the Will of his late father. He has submitted that the appeal may be dismissed by confirming the Judgment of the trial Court. 10. The points for determination in this appeal are:- (i) Whether the Judgment of the trial Court, decreeing the suit of the plaintiff in respect of the property bequeathed in the Will of late Dasashetty is justified or requires interference? (ii) Whether the plaintiff is entitled to 1/3rd share in item Nos. 2 to 23 of suit schedule property? (iii) What relief the appellant is entitled to? 11. (ii) Whether the plaintiff is entitled to 1/3rd share in item Nos. 2 to 23 of suit schedule property? (iii) What relief the appellant is entitled to? 11. Our answers to the aforesaid points are:- (i) in the affirmative; (ii) in the affirmative insofar as the item Nos. 2, 3, 5 & 7 are concerned; and (iii) as per final order for the following Reasons In order to substantiate his claim, the plaintiff has examined himself as PW.1. In his evidence, he has reiterated the facts mentioned in the plaint and has further stated that he was 16 years of age when his father died and the defendant No. 1 took over all the properties of late Dasashetty and also the assets including the jewels, motor vehicles and the other items of the property. It is also stated by him that the properties left by his late father were earning rents from the tenants and also the business carried on was getting profits. He has stated in his evidence that his father has left a will according to which his father has put a condition that all the three sons shall equally divide the properties and that he shall marry his elder sister’s daughter-Rajalakshmi. It is further stated by him in his evidence that defendant No. 1 has purchased the other suit schedule properties out of the income derived from the suit schedule properties. It is also stated by him that the first defendant has sold the land bearing Sy. Nos. 90/2 & 90/4 for Rs.30,000/- and the sale proceeds was deposited at Canara Bank, Kanakapura jointly in their names. However, the first respondent has withdrawn the same and has purchased suit item No. 5. Suit item No. 6 has been jointly purchased in the name of the plaintiff and the defendants. He has stated that till the year 1988, when he got married, he was residing in the family house and was contributing to the progress of the family income. It is his evidence that item Nos. 2, 3, 5, 6 & 7 were purchased after the death of his father out of the income derived from the assets left by his late father and hence he is entitled to one share in the said properties. However, in the cross-examination, he has admitted that the lands in Sy. Nos. It is his evidence that item Nos. 2, 3, 5, 6 & 7 were purchased after the death of his father out of the income derived from the assets left by his late father and hence he is entitled to one share in the said properties. However, in the cross-examination, he has admitted that the lands in Sy. Nos. 90/2 & 90/4 were sold by his father himself during his lifetime. It is also elicited in the cross-examination that the first defendant is doing fruit business separately in a rented shop and that he is also running a chit fund business though he has not seen any document of that chit fund business. It is also admitted by him in the cross-examination that his wife has deserted him and a case is pending against him for demand of dowry and ill-treatment. The plaintiff has also produced 24 documents including the copy of the Will; copies of Sale Deeds; Assessment Extracts and the Geneological tree. 12. The defendant has examined himself as DW.1 and he has reiterated the version stated by him in the written statement. He has asserted that except item No. 1, the other properties were self acquired by him by his own earnings and that he has also celebrated the marriage of the plaintiff and also his sister. The plaintiff has married his sister’s daughter. However, he has left her and he is residing with another woman by name Nagarathna. It is categorically stated by the defendants that the plaintiff is residing away from the defendants and the family for the past twelve years. He has also produced documents as per Exs.D1 to D70, which includes the original will; copies of sale deeds and assessment extracts. In the cross-examination, it is elicited that when their father died, property at item No. 1 was only available for the family. All the other properties were purchased after the death of their father. It is further elicited that defendant No. 1 was carrying on separate business even during the lifetime of their father and was also carrying on money-lending, chit business, hiring the taxies and conducting business in the religious festivals and thus he had accumulated wealth and acquired other items of properties by his own earnings. It is further elicited that defendant No. 1 was carrying on separate business even during the lifetime of their father and was also carrying on money-lending, chit business, hiring the taxies and conducting business in the religious festivals and thus he had accumulated wealth and acquired other items of properties by his own earnings. It is suggested to him that at the time of death of his father, item No. 1 was fetching rents and the business was also run profitably and from the said income other properties are acquired by him after the death of their father. However, defendant No. 1 has denied the said suggestion. He has stated that he has spent lot of money for the marriage of his sister as well as the marriage of the plaintiff. 13. DW.2-Sanjeevamma, is the mother of plaintiff and defendant No. 1. She has stated that her husband late Dasashetty has left behind a Will. In the cross-examination, it is elicited that till the marriage of the plaintiff, the entire family was living together cordially and defendant No. 1 has built the building in the land left behind by her late husband. DW.3-Nagaraju, is the nephew of the plaintiff and defendant No. 1. He has stated regarding the Will, which is not in dispute. DW.4-Mangalagowramma is the sister of the plaintiff and the defendants. However, her evidence is of no significance in deciding the suit. In the cross-examination, it is elicited that her relationship with the plaintiff is strained for the last 8-10 years. DW.5-Lakshmidevamma, who is the sister of the plaintiff, has stated that her daughter Rajalakshmi is given in marriage to the plaintiff. However, the plaintiff has deserted her and has developed illegal intimacy with another woman. DW.6-Rajalakshmi is the wife of the plaintiff, who has also stated regarding her marriage with the plaintiff and her desertion by him. 14. From among the documents produced by the defendants, Ex.D58 is a copy of the sale deed dated 9.10.1985 indicating the purchase of property at item Nos. 2 & 3 by defendant No. 1. Exs.D59 & D.60 are the sale deeds dated 27.1.1988 and 3.9.1988 respectively indicating the purchase of property at item No. 5. Ex.D57 is a sale deed dated 20.3.1980 indicating joint purchase of the property by the plaintiff and defendants No. 1 & 2. 2 & 3 by defendant No. 1. Exs.D59 & D.60 are the sale deeds dated 27.1.1988 and 3.9.1988 respectively indicating the purchase of property at item No. 5. Ex.D57 is a sale deed dated 20.3.1980 indicating joint purchase of the property by the plaintiff and defendants No. 1 & 2. Ex.D71 is the sale deed dated 16.7.1980 indicating the purchase of property at item No. 7 by defendant No. 1. All these properties were purchased while the plaintiff was living with the defendants in the family house. 15. From the aforesaid evidence on record and the submissions made by the Counsel, it is clear that item Nos. 2, 3 5, 6 & 7 have been purchased after the death of late Dasashetty and during the period when the plaintiff was residing with the defendants. It is the case of the plaintiff that he has substantially taken part in the affairs of the family including the family business and that out of the mesne profits of the property left by the deceased father, these properties were acquired by the defendants. Item No. 6 has been registered jointly in the name of the plaintiff and defendants No. 1 and 2. Whereas the other items namely., Item Nos,2, 3, 5 & 7 have been registered in the name of defendant No. 1. Defendant No. 1 has not at all produced any documents to show that he had any independent income to purchase the aforesaid items of property. Whereas the evidence of PW.2, their mother and the evidence of their sisters-DWs.4 & 5 clearly establishes that the plaintiff was residing in the family house till his separation from the family after his marriage. Therefore, under the circumstances, it is clear that the aforesaid item Nos. 2, 3, 5 & 7 are acquired jointly by the plaintiff and the defendants and the source for such acquisition is the property left behind by late Dasashetty. Under the circumstances, we are of the opinion that while other items of suit schedule properties have been purchased by defendant No. 1 after the plaintiff separated from the family house, items Nos. 2, 3, 5 & 7 are acquired when the plaintiff was a member of the family and was residing jointly. Under the circumstances, we are of the opinion that while other items of suit schedule properties have been purchased by defendant No. 1 after the plaintiff separated from the family house, items Nos. 2, 3, 5 & 7 are acquired when the plaintiff was a member of the family and was residing jointly. Hence, we are of the opinion that apart from Item No. 1, in which the trial Court has held that the plaintiff is entitled to a share as per the Will, the plaintiff is also entitled to 1/3rd share in Item Nos. 2, 3, 5 & 7. It is needless to say that Item No. 6 has been jointly registered in the name of the plaintiff and defendant No. 2 and necessarily he will be entitled to 1 share in the aforesaid property also. In view of what has been discussed above, we are of the considered opinion that the plaintiff is entitled to 1/3rd share in Item Nos. 2, 3, 5 & 7 of the suit schedule properties and hence, this appeal is entitled to succeed. 16. Accordingly, the appeal is partly allowed. It is declared that apart from the share allotted to the plaintiff as per the Will dated 7.7.1977 executed by late Dasashetty, the plaintiff is also entitled to 1/3rd share in item Nos. 2, 3, 5 & 7 of the suit schedule properties. 17. In the facts and circumstances of this case, the parties shall bear their own costs.