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2017 DIGILAW 1310 (KAR)

A. R. Rangaswamy v. A. R. Thimmappa

2017-09-18

S.N.SATYANARAYANA

body2017
JUDGMENT : The 2nd defendant in OS.No.118/1990 on the file of Additional Civil Judge (Jr.Dn), Kunigal, has come up in this second appeal impugning the concurrent findings of both the courts below in decreeing the suit of plaintiff for the relief of partition and separate possession of his 1/3rd share in the suit schedule properties. 2. The brief facts leading to this second appeal are as under: The suit in OS.No.118/1990 is filed by one A.R. Thimmppa against his father Rangaiah and second defendant, his younger brother A.R. Rangaswamy. In the said suit in all four properties are referred to as the suit schedule properties. Out of that, three properties are the agricultural properties situated at Avanagere village, Yediyur Hobli, Kunigal Taluk, namely Sy.No.37/3, measuring 30 guntas; Sy.No.31 measuring 1 acre 7 guntas and Sy.No.31 measuring 1 acre 6 guntas and fourth one is a vacant site with a small tiled roof house situated in the same village bearing Khaneshumari No.48/1 measuring east to west 30 feet and north to south 40 feet. 3. In the said suit, after service of summons, the defendants entered appearance and filed written statement. Wherein the 1st defendant took up a contention that the suit schedule properties are the joint family properties and all the persons have a share in that. However, he took up a specific defence that the suit is bad for non joinder and for want of necessary parties. His defence is that his daughters are also entitled to a share in the suit properties and they are not arraigned as parties to the proceedings. So far as the right of plaintiff to seek partition is concerned, 1st defendant states that himself, plaintiff and 2nd defendant were all Government employees, each one of them had independent income and none of his sons have contributed anything to 1st defendant for acquisition of the suit properties. 4. The 1st defendant in his written statement admits that suit schedule item Nos.1 to 3 are the ancestral properties and so far as item No.4 is concerned, he acquired said property out of his own earnings and got the sale executed in the name of 2nd defendant as he was educated. 4. The 1st defendant in his written statement admits that suit schedule item Nos.1 to 3 are the ancestral properties and so far as item No.4 is concerned, he acquired said property out of his own earnings and got the sale executed in the name of 2nd defendant as he was educated. According to 1st defendant, he has given said house/suit schedule item No.4 to his daughter Lakkamma, who does not have worldly knowledge and physically handicapped, to reside there and said Lakkamma is actually residing in said house. He has also stated that she is also entitled to a share in the family properties along with his other daughters and the plaintiff has willfully omitted to arraign them in the proceedings to defraud their legitimate right. 5. The 2nd defendant, who is appellant herein in his written statement also stated that suit schedule item Nos.1 to 3 are the properties of joint family and in respect of which he has no objection for partition of the same. However, so far as item No.4 is concerned, he has taken a specific defence that he has purchased the same from out of the savings that he has made. As such, said property is his absolute property which cannot be partitioned between the plaintiff and defendants. He also took up an alternate defence that there are other properties, which are referred to in paragraph 5 of his written statement, namely wet land bearing Sy.No.361/2-16 measuring 8 guntas and a residential property bearing No.34, old No.26, 11th cross, 4th Main, Lakshmaiah Block, Ganganagar, Bangalore -32 measuring to an extent of 30 feet x 35 feet. According to him, the said properties also should be included in the suit schedule properties and partition will have to be effected. 6. In the court below, based on the aforesaid pleadings the following issues are framed. They are: 1. Does the plaintiff proves that the suit schedule properties are the joint family properties of himself and defendants? 2. Does the plaintiff proves that the suit schedule properties are in joint possession and enjoyment of himself and defendant? 3. Does the plaintiff proves that he is having 1/3rd share in the suit schedule properties? 4. Does the plaintiff proves that he is entitled for partition and separate possession of his 1/3rd share in the suit schedule properties by metes and bounds? 5. 3. Does the plaintiff proves that he is having 1/3rd share in the suit schedule properties? 4. Does the plaintiff proves that he is entitled for partition and separate possession of his 1/3rd share in the suit schedule properties by metes and bounds? 5. Does the defendant proves that the properties mentioned in para 5 of written statement are also joint family properties which are liable for partition? 6. What order or decree? Thereafter, the matter went in to trial. Wherein, on behalf of the plaintiff he examined himself as PW.1 and in addition to that he has also examined 3 other witnesses, namely PW.2-Lakkamma, PW.3-Venkatesha and PW.4-Bettegowda. 7. PW.1 – plaintiff in his evidence has reiterated the plaint averments regarding suit schedule item Nos.1 to 3 being ancestral properties and item No.4 as the joint family property purchased by 1st defendant i.e., plaintiff’s father in the name of 2nd defendant. PW.2 – Lakkamma is none other than the elder sister of plaintiff and as well as 2nd defendant. She is admittedly the daughter of 1st defendant. Said witness would support the case of plaintiff that suit schedule item Nos.1 to 3 are the ancestral properties and item No.4 – house in the village is the property purchased by her father in the name of her younger brother, 2nd defendant in the court below only for the reason that he was educated. Since she being physically handicapped, it was the intention of her father to give said property/item No.4 to her. Therefore, at no point of time it was the absolute property of 2nd defendant as contended in his written statement. Though she has tendered evidenced as PW.2 in support of the plaintiff’s case, she has also supported the defence of her father, wherein he has contended that suit schedule item Nos.1 to 3 are the ancestral properties and item No.4 is absolute property of himself, which he has acquired in the name of 2nd defendant. 8. PW.3 –Venaktesha is none other than the nephew of plaintiff and 2nd defendant and grand-son of 1st defendant. He has also supported the defence raised by his grand-father that suit schedule item Nos.1 to 4 are the joint family properties and the contention of 2nd defendant that item No.4 is his absolute property is denied. 8. PW.3 –Venaktesha is none other than the nephew of plaintiff and 2nd defendant and grand-son of 1st defendant. He has also supported the defence raised by his grand-father that suit schedule item Nos.1 to 4 are the joint family properties and the contention of 2nd defendant that item No.4 is his absolute property is denied. PW.4 – Bettegowda is none other than the scribe of document at Ex.P8, the sale deed under which item No.4 is purchased. 9. Per contra, on behalf of the defendants, 2nd defendant has adduced evidence as DW.1. In his evidence he would try to state that in the year 1973 he joined service in a private company on monthly salary of Rs.350/-. Subsequently, in the year 1976 he joined Government service and his initial salary was about Rs.350/- p.m. According to him, the plaintiff, 1st defendant and himself were all residing together and 1st defendant was taking care of all the affairs of joint family. His father, 1st defendant retired from service in the year 1987-88. While in service his salary was about Rs.3,500/- pm., and after retirement his pension was about Rs.700/- pm. He has also stated that 1st defendant died in the year 1996. 10. DW.1 would further state in his evidence that earlier he had filed a suit in OS No. 3982 of 1985, which is again another suit for partition of property situated at Mahalakshmipuram, Bangalore. When the same was tried to be sold by 1st defendant, which was the joint family property, he had filed said suit seeking 1/3rd share in said property. It is stated that said suit was decreed in his favour and the appeal filed by 1st defendant on said judgment in RFA.No.735/1989 came to be dismissed resulting in FDP proceedings being initiated against his brother and father seeking his 1/3rd share pursuant to judgment and decree passed in OS.No.3982/1985. He has also stated that besides said property, which was the joint family property suit schedule item Nos.1 to 3 properties are also joint family properties. So far as item No.4 is concerned, he again reiterates that it is his absolute property which he has purchased from out of his personal income. 11. He has also stated that besides said property, which was the joint family property suit schedule item Nos.1 to 3 properties are also joint family properties. So far as item No.4 is concerned, he again reiterates that it is his absolute property which he has purchased from out of his personal income. 11. In support of defence that item No.4 is his absolute property, 2nd defendant - DW.1 relied upon a document at Ex.D8, which is a passbook of the Bank maintained by him with Syndicate Bank, Ganganagar Branch with SB a/c bearing No.56490. According to him, item No.4 of the suit schedule properties, the original sale deed of which is produced and marked by the plaintiff at Ex.P8 dated 28.1.1980 was purchased by utilizing the money which was withdrawn by him from the aforesaid bank account on 14.1.1980 and 24.1.1980, which is in the range of Rs.380/- (Rs.200/- and Rs.180/-). According to him, that is the amount which is paid by him towards the purchase of item No.4 and the balance amount of Rs.120/- is borrowed by him. However, there is no evidence in that behalf. Per contra, the sale deed at Ex.P8 would indicate that Rs.500/- towards entire sale consideration is paid. In addition to that Rs.50/- is paid towards purchase of stamp paper and further amount is also spent towards registration charges and other expenses. Therefore, the contention of 2nd defendant that he withdrew Rs.380/- from bank in the month of January 1980 and by borrowing Rs.120/- he has purchased item No.4, cannot be believed. 12. Per contra, the evidence on record in the form of oral evidence of PWs.1 and 2, who are none other than the plaintiff and his younger sister, who is said to be in possession and enjoyment of item No.4 would clearly establish that it is their father, 1st defendant who had purchased item No.4. In this regard, if the evidence of DW.1, the 2nd defendant is seen, he would state that his father had retired from service in the year 1986-87, whereas this property is purchased in the year 1980 itself. He would also state that when his father had retired from service his monthly income was in the range of Rs.3,500/- and as against that what his father had spent for purchase of item No.4 is only Rs.500/-. 13. He would also state that when his father had retired from service his monthly income was in the range of Rs.3,500/- and as against that what his father had spent for purchase of item No.4 is only Rs.500/-. 13. According to 1st defendant, item No.4 of the suit schedule properties is purchased by him for the benefit of his daughter, who is physically disabled. When the entire pleadings and evidence are appreciated, there appears to be some truth in the submission of 1st defendant as stated by way of defence in his written statement which is supported by PW.2 – Lakkamma, daughter of 1st defendant. In her evidence, PW.2 would also state that she is in possession and enjoyment of suit schedule item No.4 from the date it was purchased. She would further state that it is her father who has put up a small house on item No.4 where she is residing. The fact that PW.2 is residing in said house is confirmed by PW.1 – plaintiff and as well as DW.1 in their evidence. Added to this, the written statement filed by 1st defendant would clearly disclose that 1st defendant has given suit schedule item No.4 to his daughter – Lakkamma for her residence since she is physically handicapped and needed his support. As against the evidence of plaintiff’s witnesses, the evidence of 2nd defendant is nothing but reiteration of what is stated in his written statement in contending that suit schedule item No.4 is his personal property, which does not stand to reason. Accordingly, the trial court proceeded to answer the issue with reference to suit schedule item No.4 that the same is joint family property along with suit schedule item Nos.1 to 3, which are accepted as joint family property by all the parties to the suit. 14. Regarding the defence which was raised by 2nd defendant at paragraph 5 of his written statement regarding the two properties mentioned is not accepted by the trial court, for the reason that with reference to said properties the 2nd defendant had already filed a suit in OS.No.2291/1990 before the City Civil Court, Bangalore, which was pending, wherein he had also taken a plea that property situated at Ganganagar, Bangalore, where the plaintiff in said proceeding is residing is also joint family property. It is seen that subsequently the said suit came to be dismissed on merits on 5.9.2011, which was not challenged by the 2nd defendant in the original suit thereby he had lost right to reiterate the very same prayer in this proceedings. It is further seen that in the meanwhile, since 1st defendant had already died in his place his widow and children were brought on record and the court below proceeded to grant 1/3rd share to all the parties i.e., plaintiff, 1st and 2nd defendants and so far as 1/3rd share of 1st defendant is concerned, it was divided on all his sharers. 15. In fact, plaintiff being aggrieved by the same preferred an appeal in RA.No.3/2003 on the file of Civil Judge (Sr.Dn), Kunigal, wherein the lower appellate court on appreciation of the pleadings, oral and documentary evidence available on record and also grounds urged in the appeal proceeded to frame in all 2 points for consideration. They are: 1. Whether the judgment and decree passed by the trial court is opposed to law and facts and evidence and all probabilities of the case? 2. Whether the judgment and decree passed by the trial court is requires any interference by this court? 3. What order? 14. Thereafter, on re-appreciation of the pleadings and evidence has proceeded to dismiss the said appeal, against which the 2nd defendant in the original suit has come up in the present second appeal. When this appeal came up for admission on 14.6.2007 it was admitted to consider the following substantial questions of law: Whether the courts below were justified in holding that item No.4 of the suit schedule properties is a joint family property and liable for partition when in the light of the recitals in the sale deed as well as Ex.D3 the pass book of the 2nd defendant? 15. Heard the learned counsel for the appellant. 15. Heard the learned counsel for the appellant. Since no one represented the respondents in this proceedings this court on going through the judgments of both the courts below and also grounds of appeal would answer the substantial question of law in the affirmative against the appellant for the following reasons: On going through the pleadings and evidence available on record it is seen that the plaintiff and 2nd defendant, who are the sons of 1st defendant would admit that suit schedule item Nos.1 to 3 are the ancestral properties which have come to the share of 1st defendant in a partition which had taken place between himself and his brother in the year 1949. It is further admitted by all of them that all three of them were Government employees and that the ancestral properties were looked after by 1st defendant during his lifetime. When it comes to suit schedule item No.4, 2nd defendant in the original suit has taken a specific defence that said property is his exclusive property. In fact, the judgment in the original suit with reference to item Nos.1 to 3 is with the concurrence of all the parties, but it was only with reference to item No.4 the 2nd defendant states that it is his absolute property which is denied by the plaintiff and 1st defendant. 16. Admittedly, 1st defendant was in service as on the date when Ex.P8 sale deed of item No.4 was registered in the name of 2nd defendant. The consideration shown in the said document is Rs.500/- and the stamp paper expenses on that is Rs.50/-. However, the registration fees and other expenses which are spent on that document is not stated in exact terms by any of the parties. It is seen that 2nd defendant tried to substantiate his stand that suit schedule item No.4 was purchased by him and in that regard would rely upon a passbook issued by the Syndicate Bank of Ganganagar Branch with SB a/c No.56490. The said document is marked as Ex.D8 and again as Ex.D16, which is referred to as Ex.D3 in the substantial question of law, which is erroneous. 17. Actually Ex.D3 is a passbook issued by the Karnataka Labour Department Employees’ Cooperative Society Limited, Bangalore, where some amount is said to have borrowed by 2nd defendant for the purpose of construction of his house. 17. Actually Ex.D3 is a passbook issued by the Karnataka Labour Department Employees’ Cooperative Society Limited, Bangalore, where some amount is said to have borrowed by 2nd defendant for the purpose of construction of his house. Though he has relied upon the said document there is no reference to a pleading about the exact date when the construction was taken up on suit schedule item No.4 and utilization of the amount shown in Ex.D3. So far as Exs.D8 and D16 are concerned, they are relied upon to substantiate that on 14.1.1980 and 24.1.1980 the 2nd defendant withdrew a sum of Rs.380/- from his SB account and according to him, it is for the purpose of purchase of suit schedule item No.4. As stated supra, when cost of acquisition is Rs.500/-, the evidence of 2nd defendant that aforesaid sum of Rs.380/- which was withdrawn and another sum of Rs.120/- which was borrowed by him is the nucleus for purchase of suit schedule item No.4, cannot be believed. Per contra, the pleading of 1st defendant by way of defence would clearly indicate that he has paid the amount for purchase of suit schedule item No.4 and the said property was purchased by him in the name of his second son, who is educated. 18. In any event, if suit schedule item No.4 is the personal property of 2nd defendant, there is no reason why the document (sale deed of item No.4) with regard to said property is kept in the custody of his father-1st defendant. In fact, it is not the 2nd defendant who has produced the original of said document, it is his brother, who is plaintiff in the court below has produced the original document which was with his father who was looking after the affairs of joint family. Therefore, the two entries of withdrawal of Rs.380/- from SB a/c by 2nd defendant to claim that suit schedule item No.4 is his property are not sufficient to establish his case as rightly observed by the court below. Therefore, the two entries of withdrawal of Rs.380/- from SB a/c by 2nd defendant to claim that suit schedule item No.4 is his property are not sufficient to establish his case as rightly observed by the court below. In the defence which is raised on behalf of 1st defendant, he would also state that suit schedule item No.4 which was purchased by him was intended to be given to his daughter Lakkamma, who is physically handicapped, which is held to be appropriate defence in Lakkamma as PW.2 and PW.1 – Thimmappa both giving evidence to the effect that possession and enjoyment of suit schedule item No.4 is with Lakkamma. 19. In that view of the matter, the factum of exercise of ownership by 1st defendant as Kartha of the family in putting the said property – item No.4 in possession of his daughter for whose benefit it is stated that he has purchased the property is clearly seen. Therefore, this Court find that the defence taken by the appellant herein is rightly not considered in his favour by the trial court and the lower appellate court and also while relying upon the documents have rightly rejected the contention of 2nd defendant regarding item No.4 as his absolute property. Consequently, passed an appropriate order in recognizing the right of plaintiff and 2nd defendant in holding that they have only 1/3rd share in item No.4 of suit schedule properties also. 20. It is further seen that during the pendency of the proceedings in original suit 1st defendant has died. In the light of that, the share of 1st defendant in all the suit properties is further divided among his widow and children wherein the plaintiff and 2nd defendant have also secured one share each along with other members of the family, which also appears to be just and proper. In that view of the matter the findings rendered by both the courts below in OS.No.118/1980 on the file of Additional Civil Judge (Jr.Dn), Kunigal, by its judgment and decree dated 3.4.2003, which is confirmed in RA.No.3/2003 on the file of Civil Judge (Sr.Dn), Kunigal, by judgment and decree dated 30.1.2006, do not call for interference. 21. In that view of the matter the findings rendered by both the courts below in OS.No.118/1980 on the file of Additional Civil Judge (Jr.Dn), Kunigal, by its judgment and decree dated 3.4.2003, which is confirmed in RA.No.3/2003 on the file of Civil Judge (Sr.Dn), Kunigal, by judgment and decree dated 30.1.2006, do not call for interference. 21. However, at this juncture this court would further observe that in the written statement filed by 1st defendant he has clearly stated that it was his intention to give suit schedule item No.4 to his daughter Lakkamma who is PW.2 in the court below. In the Final Decree Proceedings to be initiated the wish of 1st defendant should be recognized by the FDP court and while granting equal share in suit schedule item Nos.1 to 3 to the legal heirs of 1st defendant the 1/3rd share of 1st defendant in suit schedule item No.4 should be exclusively given to PW.2-Lakkamma, who is subsequently arraigned as defendant No.4 in the original suit. Though said defendant No.4 Lakkamma did not challenge the judgments of both the courts below, this Court having seen the written statement of deceased 1st defendant which was filed by him during his lifetime wherein it is stated that it was his desire to give suit schedule item No.4 to his daughter Lakkamma having been observed, this court would hold that the judgments of both the courts below is required to be modified only to that extent to give effect to the ‘will’ of deceased 1st defendant. So far as other shares, it shall remain undisturbed before the FDP court and if it is agreeable to all the parties they are at liberty to rearrange their shares in such a way that item Nos.1 to 3 are equitably distributed among themselves. Such liberty is reserved to the appellant herein and also to the other defendants without infringing any of their rights under the judgment and decree passed by both the courts below, which is modified to a certain extent in this appeal so far as the share of 1st defendant in suit schedule item No.4 is concerned. With the foresaid observations, this second appeal filed by the 2nd defendant in OS.No.118/1990 is disposed of.