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2015 DIGILAW 59 (KAR)

Puttamma v. Thippelingappa

2015-01-08

RAVI V.MALIMATH

body2015
JUDGMENT Ravi V. Malimath, J. 1. The case of the plaintiffs is that the defendants constituted a joint Hindu Undivided Family. The deceased Lingappa was the common ancestor. The plaintiffs are the legal representatives of the deceased Shivalingappa, who was the second son of Lingappa. The 1st defendant was the 1st son of Lingappa. The original ancestor Lingappa died on 08.03.1978. The 1st defendant being the eldest son used to manage the family affairs of the plaintiffs and defendants. The husband of the first plaintiff was an illiterate. He was only looking after the cattle, harvesting crops and doing agriculture etc., In the year 1990, there was a partition between the deceased Shivalingappa and the 1st defendant. However, the suit schedule properties were not included in that partition on the ground that there was a sale of those properties. The plaintiffs were ignorant with regard to the two sale deeds dated 25.8.1958 and 25.12.1969 which was executed by the deceased Lingappa in favour of 2nd defendant in respect of Item No. 1 and another sale deed executed by the deceased Shivalingappa in favour of 2nd defendant in respect of Item No. 2. Therefore, both the sale deeds were not binding on the plaintiffs' half share in the suit schedule properties. That the plaintiffs and the defendants being in joint possession and enjoyment of the suit schedule property, the defendants started troubling the plaintiffs over their peaceful possession and enjoyment of the suit schedule property. When a share for partition was demanded by the plaintiffs the same was denied by the defendants. Hence, the suit was filed seeking relief for partition and separate possession of their half share in the suit schedule properties and to declare that the sale deeds dated 25.08.1958 and 25.12.1969 as not binding on their shares. The defendants entered appearance and filed their written statement. They admitted their relationship but disputed that the suit schedule properties are joint family properties. Their case was that the original ancestor Lingappa had two sons by name Thippelingappa i.e., first defendant and Shivalingappa i.e., the husband of the first plaintiff and father of plaintiffs-2 to 7. During the lifetime of the original ancestor Lingappa, a partition was effected between him and his two sons on 10.05.1951. Their case was that the original ancestor Lingappa had two sons by name Thippelingappa i.e., first defendant and Shivalingappa i.e., the husband of the first plaintiff and father of plaintiffs-2 to 7. During the lifetime of the original ancestor Lingappa, a partition was effected between him and his two sons on 10.05.1951. In that partition, the joint family house was divided into three portions namely Northern portion was given to the share of Lingappa; Middle portion was given to the share of Thippelingappa; and Southern portion was given to the share of Shivalingappa. The joint family of Lingappa owned six survey numbers. In Sy. No. 61, 10 acres and 7 1/2 acres, in Sy. No. 47/1, 11 acres was allotted to the share of 1st defendant. In Sy. No. 61, 2 1/2 acres of land, in Sy. No. 120, 3 acres 36 guntas, in Sy. No. 21, 5 acres 24 guntas and in Sy. No. 47/1, 5 acres were allotted to the share of Shivalingappa, who is the husband of the 1st plaintiff and father of plaintiffs-2 to 7. Sy. No. 63 which is Item No. 1, in the suit, was allotted to the share of the original ancestor Lingappa. From the date of the said partition, they are living separately with their respective shares. On 25.08.1958, Lingappa sold Item No. 1 in favour of defendant No. 2. On 25.12.1969, father of the plaintiffs i.e., Shivalingappa sold Item No. 2 in favour of defendant No. 2 under a registered sale deed. After the death of Lingappa, the katha was actually made in the joint name of 1st defendant and father of plaintiffs. The 1st defendant filed an application seeking change of katha separately as per the said partition deed and the same was dismissed and confirmed in appeal with a direction to approach the civil court. Subsequently, panchayat was held in the village and both parties agreed to execute a registered Partition Deed in terms of the earlier partition. Hence, on 01.01.1990, a registered document came to be executed. Therefore, as on the date of suit, there was no joint family existing between the plaintiffs and defendants. The suit schedule properties are exclusive properties of defendants. The plaintiffs are not entitled for any share. Hence, they plead for dismissal of the suit. Based on the pleadings, the trial Court framed the following issues: "1. Therefore, as on the date of suit, there was no joint family existing between the plaintiffs and defendants. The suit schedule properties are exclusive properties of defendants. The plaintiffs are not entitled for any share. Hence, they plead for dismissal of the suit. Based on the pleadings, the trial Court framed the following issues: "1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties of themselves and defendant No. 1 and they are in joint possession and enjoyment of the same? 2. Whether the defendants prove that there was a partition during the lifetime of Lingappa as per the Deed dated 10.05.1951 and the first defendant and the father of the plaintiffs were living separately with their respective shares? 3. Whether the plaintiffs prove that the sale deed dated 25.08.1958 and 25.12.1969 executed in favour of defendant No. 2 is not binding on the shares of the plaintiffs? 4. Whether the plaintiffs are entitled for partition and separate possession of their half share in the suit schedule properties? The plaintiffs examined the 5th plaintiff as PW1 and got marked 26 Exhibits. The 2nd defendant was examined as DW1 and 39 documents were got marked. Issue Nos. 1, 3 and 4 were held in the Negative and Issue No. 2 was held in the Affirmative. The suit was dismissed. Aggrieved by the same, the plaintiffs preferred an appeal which was also rejected. Hence, the present appeal. 2. Learned counsel for the appellants contends that the Courts below committed an error in misreading the evidence on record while dismissing their suit. No document is produced to substantiate that there was a partition effected between the parties. Therefore, he pleads that the appeal be allowed and the suit be decreed. On the other hand, learned counsel for the respondents defends the impugned judgment and decree. 3. Heard learned counsels and examined the records. The material on record would clearly establish the fact that a registered partition deed was effected on 01.01.1990. In terms thereof, the properties were divided between the plaintiffs and defendants. Subsequent to the partition, the properties were mutated to their respective names. Therefore, they contend that the partition executed in the year 1990 is erroneous and does not arise for consideration. In terms thereof, the properties were divided between the plaintiffs and defendants. Subsequent to the partition, the properties were mutated to their respective names. Therefore, they contend that the partition executed in the year 1990 is erroneous and does not arise for consideration. The trial Court has rightly answered Issue No. 1 holding that the plaintiffs have failed to prove that the suit schedule properties are joint family properties. When once the partition takes place, the nature of the properties change. Then, it cannot be considered as joint family properties. The material evidence on record would show that the sales were also taken into consideration while effecting the partition deed in the year 1990. In terms of the registered partition deed vide Ex. D22 except the properties that have been sold no joint family properties are available for division. The two properties which were sold under joint possession could be found from the partition deed Ex. D22. Therefore, to hold that the sale deeds executed in the years 1958 and 1969 are with respect to the joint family properties is not supported by any evidence lead in by the plaintiffs. In the recitals of Ex. D22 except the properties narrated therein no other properties exist for partition. Therefore, the sale of those properties becomes inconsequential. It does not in any manner affect the share of the plaintiffs as claimed by them especially in view of the fact that a registered partition deed has taken place between the plaintiffs and the defendants. By the subsequent sale deed, the name of the 2nd defendant has been entered in both the Columns-9 and 12 of the RTC. Therefore, the trial Court has rightly held that the plaintiffs have failed to prove that the sale deeds executed in the year 1958-69 are not binding on their shares. After the partition was effected in terms of Ex. D22 during the lifetime of their father Shivalingappa, the plaintiffs have got divided their properties allotted to their father's share. Ex. D10 clearly shows that the plaintiffs-5 and 6 have sold their properties in favour of third party in the year 1999-2000 under Exs. D-11 and 12. PW1 during the course of cross-examination has also admitted that in the year 1997 they divided their properties under Ex. D10. Ex. D10 clearly shows that the plaintiffs-5 and 6 have sold their properties in favour of third party in the year 1999-2000 under Exs. D-11 and 12. PW1 during the course of cross-examination has also admitted that in the year 1997 they divided their properties under Ex. D10. Once the partition has taken place, properties are divided and the parties are enjoying their respective shares and the plaintiffs have sold some of the properties fallen to their shares, the suit for partition cannot be entertained. 4. On considering the material evidence on record, I am of the considered view that there is no error committed by both the Courts below that calls for any interference. The reasons assigned by both the Courts are based on the material evidence on record. Even otherwise no substantial question of law arises for consideration in this appeal. Consequently, the appeal being devoid of merit is dismissed.