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2016 DIGILAW 77 (KAR)

Shivakumar D. C. v. Meenakshi K.

2016-01-21

N.KUMAR, P.D.WAINGANKAR

body2016
JUDGMENT : N. Kumar, J. 1. This is a defendant's appeal against the judgment and decree of the Trial Court, which has decreed the suit of the plaintiff granting him half share in item Nos. 1 to 3 of first schedule and item No. 7 of the second schedule and rejecting the claim in respect of item Nos. 1 to 6 in the second schedule. 2. For the purpose of convenience, the parties are referred as they are referred to in the original suit. 3. The subject matter of the suit is one house property and two agricultural lands, which are more particularly described in the first schedule to the plaint. Seven items of movable properties are set out in the second schedule with full particulars. 4. The genealogy, which is produced and is not disputed, discloses that one Chinmayappa was the predecessor who died on 05.05.1982. His wife is Smt. D.C. Aparnamma who died about five years prior to the filing of the suit i.e., on 18.05.2007. They had two sons by name D.C. Arun Kumar and D.C. Shivakumar. D.C. Arun Kumar was employed in Karnataka Small Savings Department. He died in harness on 16.06.1989. His wife Smt. Meenakshi was granted compassionate appointment. They had a son by name Viswanath. Meenakshi is the 1st plaintiff and Viswanath is the 2nd plaintiff. The defendant D.C. Shivakumar is the second son of Chinmayappa and Aparnamma. The relationship is not in dispute. The plaintiffs have filed the suit claiming that the suit schedule properties are all joint family properties. There was no partition during the lifetime of D.C. Arun Kumar. Therefore, they are entitled to half share in all the plaint schedule properties, which are in the possession of the defendants. 5. The defendant has filed a detailed written statement contesting the claim. He denied that the schedule properties are joint family properties and has stated that they are not the members of the joint family. He has contended that Item No. 1 to 7 of the movable properties as detailed in the plaint 'B' schedule are with the plaintiffs, which the 1st plaintiff had retained with her. He denied that the schedule properties are joint family properties and has stated that they are not the members of the joint family. He has contended that Item No. 1 to 7 of the movable properties as detailed in the plaint 'B' schedule are with the plaintiffs, which the 1st plaintiff had retained with her. It is the specific case of the defendant that after the death of his elder brother Arun Kumar, during the life time of his mother Aparnamma, Plaintiff No. 1 separated from their family with the intervention of the elders and as per the division effected between his mother Aparnamma and the 1st plaintiff, the 1st plaintiff had agreed to receive cash of Rs. 5,00,000/- as well as one residential house with open site by giving up her right in the rest of the properties. Accordingly, compromise was arrived at to that effect. The 1st plaintiff had agreed to give up her share in the schedule properties in favour of the defendant since he is jobless, whereas she has got a Government job. She left to Bangalore with that assurance. Indeed she has committed breach of those terms of compromise and has come up with the false suit, which is not maintainable. Therefore, the defendant sought for dismissal of the suit. 6. During the pendency of the suit, the defendant got amended his pleadings and incorporated additional grounds i.e., his father Chinmayappa during his lifetime had availed various loans and his mother Aparnamma had also availed loan from her brother Onkaramurthy i.e., the loan outstanding in Small savings account, in loan availed from one B. Muddanna and loan availed from SBM Davanagere as well as the loan availed to incur expenses of the last rituals of deceased Chinmayappa. All these loan amounts are cleared by his mother Aparnamma through her brother Onkara Murthy. Now the family is due to pay the said loan amount to the said Onkara Murthy and therefore, the plaintiffs are equally liable to clear the said dues along with the defendants. In order to construct the house in the first floor in Item No. 1 of 'A' Schedule property, deceased Aparnamma had availed loan from her brother Omkara Murthy, which is also due to be paid and so also the loan availed by Aparnamma from Chitradurga Gramina Bank for agricultural purpose was also cleared by her. In order to construct the house in the first floor in Item No. 1 of 'A' Schedule property, deceased Aparnamma had availed loan from her brother Omkara Murthy, which is also due to be paid and so also the loan availed by Aparnamma from Chitradurga Gramina Bank for agricultural purpose was also cleared by her. Therefore, these two loan amounts are also to be equally borne by the plaintiffs and defendants. He further contended that he incurred huge amount towards the medical expenses of his mother Aparnamma as she was suffering from Cancer disease. Therefore, he availed loan from Omkara Murthy which the plaintiffs are also liable to pay in equal share. 7. The plaintiffs filed a rejoinder categorically denying all those facts. They contended that the defendant alone has utilized the entire retirement benefit of deceased Chinmayappa and also the entire compensation amount received in connection with acquisition of land for the construction of T.B. Kere Dam. 8. On the basis of the aforesaid pleadings, the Trial Court framed the following issues: 1. Whether the plaintiffs prove that they are the members of Hindu Joint Family of themselves and the defendant? 2. Whether the plaintiffs prove that the suit properties are the joint family properties of themselves and the defendant? 3. If so, whether the plaintiffs are entitled to claim partition in the suit properties? 4. Whether the defendant proves the alleged partition as contended in his written statement para 2 on page 2? 5. What order or decree? Additional Issue 1. Whether the defendant proves the liability of the plaintiff towards the repayment of the family loan as contended in his amended written statement? 9. The plaintiffs in order to substantiate their claim examined the 1st plaintiff as P.W. 1 and produced five documents which are marked as Ex.P1 to Ex.P5. On behalf of the defendant, the defendant examined himself as D.W.1 and one witness as D.W.2 and produced two documents which are marked as Ex.D1 and Ex.D2. The Trial Court, after considering the aforesaid material on record held that the plaintiffs have proved that they, along with the defendants are the members of Hindu Joint family. Further, it held that the properties mentioned in the plaint schedule are all joint family properties. Thereafter, it held that the defendant has failed to prove the alleged partition or arrangement set-up. Further, it held that the properties mentioned in the plaint schedule are all joint family properties. Thereafter, it held that the defendant has failed to prove the alleged partition or arrangement set-up. Similarly, the defendant also failed to prove the liability of the plaintiff towards repayment of the family loan. It also held that items No. 1 to 6 mentioned in the 'B' schedule do not exist. Ultimately, it decreed the suit granting half share to the plaintiffs in 'A' schedule properties as well as in item No. 7 of the 'B' Schedule property. 10. Aggrieved by the said judgment and decree of the Trial Court, the defendant is in appeal. 11. The learned counsel for the appellant assailing the impugned judgment and decree contended that the Trial Court has not properly appreciated the defence of the defendants, in particular, the partition pleaded by them. Secondly, he contended that the Trial Court committed serious error in holding that a sum of Rs. 5,00,000/- belonging to their mother is in possession of the defendant, which the plaintiffs are entitled to half share and therefore, he submits that the judgment and decree of the Trial Court is liable to be set-aside. 12. Per contra, the learned counsel appearing for the respondents, supporting the impugned judgment and decree contended that the so-called partition pleaded by the defendant is not substantiated by any acceptable evidence. Similarly, the loans and the expenditure, which the defendant sought to set-up is also not proved by any acceptable evidence. Rightly, the Trial Court has not relied on the evidence of Omkara Murthy. Further he contended that the defendant in his evidence has admitted the possession of Rs. 5,00,000/- belonging to his mother and therefore, the Trial Court committed no error in decreeing the suit in respect of the said cash. Therefore, he submits that no case for interference is made out. 13. In the light of the aforesaid submissions and the material on record, the points that arise for our consideration in this appeal are as under: 1. Whether the Trial Court has not considered the defence set up by the defendant while passing the judgment and decree? 2. Whether the finding of the Trial Court that the plaintiffs are entitled to half share in item No. 7 of 'B' schedule property namely Rs. 5,00,000/- is sustainable in law? Point No. 1 14. Whether the Trial Court has not considered the defence set up by the defendant while passing the judgment and decree? 2. Whether the finding of the Trial Court that the plaintiffs are entitled to half share in item No. 7 of 'B' schedule property namely Rs. 5,00,000/- is sustainable in law? Point No. 1 14. A bare perusal of the judgment clearly shows that the Trial Court has set out the defence of the defendant as well as the additional grounds raised by way of amendment in the judgment. Similarly, after extracting the evidence of the defendant and appreciating the same, it has recorded a categorical finding that the alleged settlement set up by the defendant is not proved by acceptable evidence. Similarly, it has also extensively discussed the loan transactions set up by the defendant as well as the expenditure incurred and on such appreciation, recorded a categorical finding that the defendant has failed to prove the said loan transactions for expenditure incurred by the defendant in which, the plaintiff has to bear the liability to the extent of half. As on these two aspects, there is only oral evidence and the same is not supported by any documents. The Trial Court had the opportunity of watching the demeanor of witness and by giving cogent reasons, it has recorded a finding. The said finding of fact is based on oral evidence. In that view of the matter, we do not find any perversity in the finding recorded by the Trial Court. On the contrary, the Trial Court has carefully looked into the oral evidence of the parties and by giving good reasons, it has rejected the same. We do not see any justification to interfere with the said finding of fact. Accordingly, point No. 1 is answered. Point No. 2 15. Item No. 7 of the 'B' schedule properties is Rs. 5,00,000/- cash. The case of the defendant is, in the family arrangement arrived at, it was agreed that the plaintiff has to be paid Rs. 5,00,000/- cash and one item of the property and that Rs. 5,00,000/- amount, was received by his mother from her parents. When the Trial Court has not accepted this defence and has recorded a categorical finding that there is no such family arrangement, it cannot rely on the statement regarding Rs. 5,00,000/- out of context and come to the conclusion that Rs. 5,00,000/- amount, was received by his mother from her parents. When the Trial Court has not accepted this defence and has recorded a categorical finding that there is no such family arrangement, it cannot rely on the statement regarding Rs. 5,00,000/- out of context and come to the conclusion that Rs. 5,00,000/- is available with the defendant. On the contrary, in the judgment, the Trial Court has extracted the evidence of the defendant where he has categorically stated that his mother was saying that she had been paid Rs. 5,00,000/- by her parents, but the suggestion that Rs. 5,00,000/- he had kept it in a Bank deposit was denied. He has denied that he has got document to show the said deposit. He also failed to show where that Rs. 5,00,000/- is. But as asserted, under the family arrangement, it was agreed to pay Rs. 5,00,000/- to the plaintiffs. That sentence has been misconstrued by the Trial Court that the defendant is in possession of Rs. 5,00,000/-, which belongs to his mother and the plaintiff is entitled to half share of the same. The Trial Court has not properly appreciated the evidence on record and has come to a wrong conclusion. Therefore, it cannot be sustained. 16. Hence, the judgment and decree of the Trial Court insofar as holding that the plaintiff are jointly entitled to half share in items No. 1 to 3 of first schedule is affirmed and the decree passed in respect of item No. 7 of second schedule is hereby set-aside. The rest of the order stands. Accordingly, appeal is partly allowed.