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2018 DIGILAW 1000 (KAR)

Channamma W/o Late H. Chinnaiah v. Gangamma Dead by Lrs

2018-09-27

L.NARAYANA SWAMY

body2018
JUDGMENT : This appeal is filed by the plaintiffs in O.S. No.284/2000 on the file of the Civil Judge (Sr.Dn.) at Maddur being aggrieved by the judgment and decree dated 19.11.2005 dismissing the suit for partition and separate possession of the suit properties. 2. The parties would be referred to as per their rank in the suit itself for convenience. 3. The brief facts of the case are that one Hanumanthaiah was the propositus. He got two wives namely, Channamma and Naramma. Through the first wife, he got five children and through second wife, two children. Wife and son of Chinnaiah, the third child through first wife as plaintiffs No.1 & 2 and first child through second wife, as plaintiff No.3, they filed the suit O.S. No.284/2000 for partition and separate possession on the ground that suit schedule properties are ancestral properties of deceased Hanumanthaiah. After his death, his 2nd wife also died and prior to her 1st died. Later plaintiffs and defendants are legal representatives of deceased Hanumanthaiah and got right over the suit schedule properties. After the death of Hanumanthaiah, husband of first child i.e., Venkataiah, an eldest member started managing the properties, got changed the khata in his name without consent of others. Plaintiff No.2 was doing toddy contract. After the death of husband of defendant No.1, the defendants No.1, 2 and 13 colluded with revenue officials, created some fraudulent documents about suit properties without consent of plaintiffs. The land in Sy.No.45/1A - 26 guntas is standing in the name of defendant No.2. The land in Sy.No.45/1A - 30 guntas and 26 guntas also stand in the name of defendant No.2. Sy.No.45/1C – 25 guntas stands in the name of husband of defendant No.2. Sy.No.45/1A – 26 guntas standing in the name of defendant No.13. The defendants No.1, 2 and 13 have no right to alienate the properties to anybody. The defendant No.1 got changed khata in respect of suit item No.2 in her name and sold to defendant No.2. The suit schedule properties are all ancestral joint family properties. Hence the plaintiffs and defendants 1 to 13 are entitled to equal share being coparceners. 4. The defendant No.1 got changed khata in respect of suit item No.2 in her name and sold to defendant No.2. The suit schedule properties are all ancestral joint family properties. Hence the plaintiffs and defendants 1 to 13 are entitled to equal share being coparceners. 4. The defendants entered appearance in the suit and defendants No.1 to 7, 9 and 14 filed written statement denying the plaint averments and inter alia contending, father of Hanumanthegowda was Chaluvalingegowda, who died leaving behind his two sons (1) Hanumanthegowda and (2) Govindegowda. The two brothers got divided the joint family properties. The properties mentioned in suit item Nos.1 to 4 are properties fell to the share of Hanumanthegowda. Item No.5 house property also divided into two parts allotting to each, onehalf share. The five sons of Hanumanthegowda got divided the joint family properties left by Hanumanthegowda in oral partition, thereby all of them got 26 guntas each and one-fifth share in item No.5 house property out of half portion of Hanumanthegowda. Afterwards Govindegowda also died leaving behind his share to his only son, Mariyaiah. 5. It is further contended by the defendants that Chinnappa, husband and father of plaintiffs No.1 & 2 when he was bachelor, on 21.6.1951 sold his entire share both house and land to another brother Puttaiah under registered sale deed. Thereafter plaintiff No.3 also on 7.9.1984 agreed to sell and handed over his entire share both landed and house property in favour of Puttaiah under a registered deed of agreement. Accordingly, Sri Puttaiah is in possession and enjoyment of the property. Sri H. Puttaiah is father of defendants No.3 to 7 and husband of defendant No.2. Thus Chinnappa lost his right by selling the property prior to his marriage and birth of plaintiff No.2. As such plaintiff Nos.1 & 2 have no right over the property of said Chinnappa. 6. Plaintiff No.3 also agreed to sell away his entire share, not retained any property. Thus it is specific case of the defendants that plaintiffs are not entitled to maintain the suit for partition. 7. As such plaintiff Nos.1 & 2 have no right over the property of said Chinnappa. 6. Plaintiff No.3 also agreed to sell away his entire share, not retained any property. Thus it is specific case of the defendants that plaintiffs are not entitled to maintain the suit for partition. 7. On the basis of the rival contentions, as many as 15 issues were framed relating to parties being coparceners, whether the suit schedule properties are ancestral properties, partition between Hanumanthegowda and Govindegowda, partition among sons of Hanumanthegwoda, Chinnappa and plaintiff No.3 selling or agreeing to sell their share of property, Sri H. Puttaiah having purchased the properties from all brothers and share of Govindegowda, is an absolute owner in possession and enjoyment of the said properties and thus plaintiffs whether entitled to maintain the suit for partition and separate possession. 8. On behalf of plaintiffs, PW1 was examined who is a power of attorney holder of first plaintiff and wife of second plaintiff and got marked Ex.P1 to P16 consisting of Ex.P1 & P2 Geneaological trees, Ex.P3 to 15 RTC extracts and Ex.P16 house tax assessment copy. On behalf of defendants, 2nd defendant was examined as DW-1 and Ex.D1 to D6 original sale deeds were got marked. 9. I have heard the learned counsel for the appellants and learned counsel for respondents 2 to 6 and perused the LCR. 10. The learned counsel for the appellants submitted that the court below has erred in not considering Ex.P15 RTC & P16 house tax assessment, which showed a joint ownership. The view taken by the court below that there was partition among the sons of late Hanumanthaiah is erroneous. The court below erred in relying on Ex.D1 to D6 to hold that suit properties are not joint family properties. The reasoning of the learned Judge in para 14 to 16 are erroneous. Sri Puttaiah had no source of income to purchase the properties, which the learned Judge failed to take into consideration. 11. On the other hand, the learned counsel for the respondents supported the judgment and decree passed by the court below. 12. The point that arises for consideration in this appeal is, whether the judgment and decree of the court below suffers from any infirmity or illegality so as to call for interference from this Court? My answer would be in the negative for the following reasons: 13. 12. The point that arises for consideration in this appeal is, whether the judgment and decree of the court below suffers from any infirmity or illegality so as to call for interference from this Court? My answer would be in the negative for the following reasons: 13. It is case of the defendants that husband and father of plaintiffs No.1 & 2 sold his share of property and plaintiff No.3 agreed to sell his share of property under a registered agreement of sale. PW-1 has stated in her deposition that the suit schedule properties are the ancestral properties, defendants No.1, 2 & 13 got changed the khata in collusion with revenue authorities. There was no partition and they being coparceners are entitled to share. She has stated in her cross-examination that she does not know whether Hanumanthegowda and his brother got divided the properties. She has also denied the suggestion as to division of properties among the sons of Hanumanthegowda. She has admitted that suit item No.2 is part and parcel of suit item No.1. She admitted that suit item No.3 is fallen to the share of Hanumanthegowda and suit item No.4 is part and parcel of suit item No.1 and both are same. Ex.P15 RTC, Ex.P16 house tax assessment. RTC stands in the name of Venkataiah, Gangamma, Papamma, Govindaraju, Puttaiah. House property stands in the name of Mariswamy, Puttaiah, Venkatamma, Naramma, Nagaraju. 14. DW-1 has deposed that Hanumanthegwoda and Govindegowda are brothers and they got divided the properties. Said Hanumanthegowda divided the properties among his five children. Later first plaintiff’s husband Chinnappa sold his entire share on 21.6.1951 to H. Puttaiah and he did not retain any property. On 7.9.1984 plaintiff No.3 also agreed to sell his share of properties under a registered agreement. She has deposed that Sri H. Puttaiah purchased entire extent of property including the property of Govindegowda. Thus the plaintiffs have no right over the properties. 15. Ex.D1 is a registered sale deed which goes to show that husband of plaintiff No.1 sold the property in 1951 which was fallen to his share. Ex.D2 is the agreement executed by plaintiff No.3 in favour of H PUttaiah in respect of his share both land and house property. Ex.D3 is sale deed in respect of property sold to Gangamma by Gowramma and Mariyaiah. Ex.D2 is the agreement executed by plaintiff No.3 in favour of H PUttaiah in respect of his share both land and house property. Ex.D3 is sale deed in respect of property sold to Gangamma by Gowramma and Mariyaiah. Ex.D4 is the sale deed executed by Gangamma in favour of Papamma i.e., defendant No.2. Ex.D5 is sale deed executed by Mariyaiah in favour of H. Puttaiah. Ex.D6 is sale deed executed by Mariyaiah in favour of H. PUttaiah. 16. From the evidence of DW1 and the documentary evidence referred to above would make it clear that husband of plaintiff No.1 sold his entire extent of property and plaintiff No.3 agreed to sell his property to Puttaiah. Thus the plaintiffs did not succeed any properties. It is further proved that H. Puttaiah purchased all the properties from all the sharers. The documentary evidence also show that there was partition among the children of Hanumanthegowda. The plaintiffs want to rely upon the revenue entries Ex.P15 & P16. In place of registered documents, which are title documents, the revenue documents cannot be preferred to hold that there was no partition and the properties are still joint family properties. The plaintiffs have neither sought declaration as to the sale deeds or the registered agreement of sale on any of the available grounds. In the circumstances, I am of the clear view that the court below has correctly and properly assessed the materials available on record and has reached to right conclusions. There is no merit in the appeal filed by the appellants. Accordingly, the appeal is hereby dismissed. Parties to bear their own costs.