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2020 DIGILAW 528 (KAR)

Jayamma v. Lakshmipathi And Others

2020-02-24

SREENIVAS HARISH KUMAR

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JUDGMENT Sreenivas Harish Kumar, J. - The third defendant in the suit is the appellant. She has preferred this appeal aggrieved by the judgment of the trial court decreeing the suit for partition in respect of a property described in schedule-III to the plaint. She is a purchaser of the property from the first defendant on 18.01.1980. 2. The plaintiffs 1 to 3 are all the sons of first defendant. The second defendant was another son of the first defendant; he was unmarried and died during pendency of the suit. Defendants 4 to 6 are the daughters of the first defendant. The plaintiffs claimed partition in the properties described in schedules-I to VI of the plaint. Schedules-I to III consist of house properties, schedule-V comprises of agricultural land at Channapura Village and in schedule-IV movables such as jewellery and vessels are shown. Schedule-VI consists of some fixed deposits at Canara Bank and Bangalore Central Co-operative Bank. According to the plaintiffs all the schedule properties belong to the joint family consisting of themselves and defendants 1 and 2. They stated that on 5.10.1944 there took place a partition of ancestral properties between their father i.e., the first defendant and his three brothers. In the said partition, schedule-II property was allotted to the first defendant. The partition deed contains a recital that the first defendant and his brothers had already effected partition of the properties at the village Channapura and the house at Bengaluru was not partitioned and therefore on 5.10.1944 partition of this house took place. They stated that the first defendant acquired other schedule properties with the aid of income derived from the properties at the village and rental income from item no. II. 3. The defendants 1, 2, 4 and 5 filed written statement contending very specifically that defendant no. 1 earned properties at Bengaluru from his own income. He also raised loan for construction of a house. They denied that the schedule properties belonged to joint family. With respect to schedule-Ill property, they contended that the first defendant sold it to the third defendant on 18.01.1980 for sale consideration of Rs. 14,000/- as he was to discharge a loan. They also stated that the plaintiffs were entitled to claim share in schedule-V property and that schedule-IV property did not exist at all. 4. The trial court raised seven issues. 14,000/- as he was to discharge a loan. They also stated that the plaintiffs were entitled to claim share in schedule-V property and that schedule-IV property did not exist at all. 4. The trial court raised seven issues. Second plaintiff gave evidence as PW-1 and produced the documents as per Ex.P. 1 to P. 3. He was not cross examined. The defendants did not adduce evidence from their side. On appreciation of evidence the trial court recorded the findings that Ex. P.3, the partition deed, clearly shows that the first defendant and his brothers had effected partition of their landed property at Channapura village, Nagamangala Taluk, Mandya District, but at that time, the schedule-II property situated at Gavipuram Guttahalli, Bengaluru was not subjected to partition. Therefore on 4.10.1944, as evidenced by Ex.P.3, the house was subjected to partition. It was valued at Rs. 600/-. The first defendant retained the house by paying to his brothers the value of their shares in the house and therefore schedule-II property is ancestral. The trial court further held that from Ex. P.3 it could be made out that the first defendant had been allotted landed property at Channapura village. In this view the evidence given by PW-1 that the first defendant was getting income from the ancestral landed properties at the village could be believed. The plaintiffs were also employed and they were also contributing their income to the family headed by the first defendant. For all these reasons acquisition of items no. I, III and VI must have been from the joint family income. 5. With regard to sale of schedule-Ill property to the third defendant, the trial court has held that the third defendant did not contest the claim of the plaintiffs. The burden was on her to plead and prove that the first defendant sold said property to her for family legal necessity. The evidence of PW-1 discloses that the family had sufficient income and therefore the sale of schedule-Ill property was not for legal necessity. The said sale does not bind interest of the plaintiffs. Giving these reasons the trial court while decreeing the suit in respect of schedules-I to III and VI, dismissed the suit in respect of schedule-V properties because the plaintiffs had not given the description of the landed properties. 6. Sri. The said sale does not bind interest of the plaintiffs. Giving these reasons the trial court while decreeing the suit in respect of schedules-I to III and VI, dismissed the suit in respect of schedule-V properties because the plaintiffs had not given the description of the landed properties. 6. Sri. G. Balakrishna Shastry, learned advocate for appellant submitted in the beginning of his argument that the appellant confines this appeal only with respect to the property she purchased from the I defendant. The argument of Sri. G. Balakrishna Shastry is that in the plaint itself it is stated very clearly that the first defendant came to Bengaluru in search of a job and got himself employed in Government Printing Press as a packer. This shows that he had independent income. A member of joint family may acquire a property from his own income, there is no restriction. In this case the plaintiffs have clearly stated that only the income derived from the landed properties at the village, the first defendant purchased the other properties at Bengaluru. But, if schedule-V of the plaint is seen, it is very much forth coming that the plaintiffs have not at all given description of a single land at Channapura. When the trial court declined to give partition in respect of schedule-V holding that the particulars of the property are not available, it should not have held that the first defendant had income from the landed properties. The trial court has misconstrued the contents of the partition deed which was in respect of schedule-II property only. The third defendant i.e., the appellant is a bonafide purchaser of schedule-III property which was the self acquisition of the first defendant. Even though PW-1 was not cross examined, from the inherent defects in the plaintiffs case, there was no scope for decreeing the suit in respect of schedule-III property. Therefore he submitted that the appeal should be allowed. 7. Sri. Gangadhar Aithal, learned counsel appearing for respondent no. 2, submitted that the trial court has not committed any error in coming to conclusion that even the schedule-Ill property was acquired from the income of the joint family. The trial court has rightly held that the burden was on the third defendant to prove that first defendant sold the suit property to her for legal necessity. 2, submitted that the trial court has not committed any error in coming to conclusion that even the schedule-Ill property was acquired from the income of the joint family. The trial court has rightly held that the burden was on the third defendant to prove that first defendant sold the suit property to her for legal necessity. PW-1 was not at all cross examined and even she failed to adduce evidence from her side. That apart, from Ex.P.3 it could be very well made out that first defendant was allotted agricultural lands situated at the village. This is not denied by the first defendant. In view of this, the trial courts conclusions that the first defendant had sufficient income from the ancestral nucleus and therefore schedule-III property also belonged to joint family, are correct. First defendant alone had no authority to execute the sale deed in favour of third defendant. For all these reasons the impugned judgment does not call for interference. 8. All that is required to be examined is the validity of the sale made by defendant no. 1 in favour of the third defendant in respect of schedule-III property. It is settled principle that the purchasers has to prove that the sale made in his or her favour was for legal necessity. It is true that PW-1 has not been cross examined. The trial court has drawn certain inferences from Ex. P.3, the certified copy of the partition deed dated 5.10.1944. The partition deed shows that the first defendant and his brother effected partition of certain properties situated at Channapura about one year prior to 5.10.1944, but at that time the house situated at Gavipuram Guttahalli, Bengaluru i.e., schedule-II property was not subjected to partition. Subsequently as per Ex.P.3 all the four brothers agreed to share this house, but what they did was that instead of sharing the house, the first defendant retained it and paid to his brothers the value of their shares in the house. There is no dispute that schedule-II property was joint family property. But it is interesting to note that the plaintiffs sought partition in the property situated at the village without giving the description of the properties. Order VII Rule 3 of CPC envisages that if the subject matter is immovable property, the plaint shall contain the description of the property sufficient to identify it with its numbers, boundaries etc. But it is interesting to note that the plaintiffs sought partition in the property situated at the village without giving the description of the properties. Order VII Rule 3 of CPC envisages that if the subject matter is immovable property, the plaint shall contain the description of the property sufficient to identify it with its numbers, boundaries etc. If schedule-V of the plaint is seen, the plaintiffs have not stated even the survey numbers of the lands. The description is so vague that it is difficult to identify the lands. It is for this reason that the trial court refused to grant decree in respect of schedule-V property. This finding is perfectly justifiable. 9. It is the clear case of the plaintiffs that the first defendant was getting income from the landed properties at Channapura village. But if the trial court came to conclusion that the suit should be dismissed in respect of schedule-V property, and having held so, if the trial court held that first defendant had income from the landed properties at the village, I do not think that such a conclusion is justifiable. Unless the plaintiffs are sure as to what are the properties that are fetching income to the joint family, inference to the effect that first defendant had income from the landed properties cannot be drawn. 10. As rightly argued by the appellants counsel, the trial court appears to have misinterpreted Ex.P.3. Just because it is stated in Ex.P.3 that the four brothers had partitioned the properties at the village, it is not possible to draw an inference that the first defendant certainly had income from the landed properties. The plaintiffs have clearly stated in the plaint that the first defendant came to Bengaluru at an early age and secured an employment at Government Printing Press as a packer. That means the first defendant has his independent income. PW-1 in his examination-in-chief states that his father did not take share when he left the village for Bengaluru. Subsequently the partition took place in the year 1944 in respect of schedule-II property. He might have stated in the examination-in-chief that his father got to his share the agricultural land measuring six or seven acres, but he could not give survey numbers and other descriptions of the land. Subsequently the partition took place in the year 1944 in respect of schedule-II property. He might have stated in the examination-in-chief that his father got to his share the agricultural land measuring six or seven acres, but he could not give survey numbers and other descriptions of the land. Though PW-1 has not been cross examined, it is possible to draw an inference from the examination-in-chief itself that the evidence of PW-1 is insufficient to hold that first defendant had income from agricultural lands. PW-1 has stated he secured employment in the year 1961; that means atleast till 1961, first defendant alone was the earning member of the family. If he had any income from the agricultural source also the burden was initially on the plaintiffs to prove that the joint family had income from the agricultural lands. It is true that in the written statement it is stated that the plaintiffs could claim partition in schedule-V property. Just because it is stated so, it may not be possible to presume that the joint family had income from agriculture. Moreover it is also stated in the written statement that the agricultural lands are in possession of the brothers of the first defendant. In these circumstances it is difficult to hold that the first defendant had income from agricultural properties at his village. 11. The third defendant is the purchaser of schedule-III property from the first defendant. Schedule-III was purchased by the first defendant in the year 1973. It was sold to the third defendant on 18.01.1980. It is the clear contention of the defendants that schedule-III property was the self acquired property of the first defendant. In the facts and circumstances as discussed above, it may not be difficult to draw inference that the schedule-III property could be the self acquired property of the first defendant. The trial courts conclusion that the schedule-III property also belonged to joint family cannot be sustained in view of the evidence of PW1, even without cross examination apparently appearing to be improbable of acceptance. Merely because the entire evidence of PW-1 has not been challenged in the cross examination, it cannot be the sole ground for granting decree in respect of schedule-III property. 12. Merely because the entire evidence of PW-1 has not been challenged in the cross examination, it cannot be the sole ground for granting decree in respect of schedule-III property. 12. It is true that sale of a property belonging to joint family is not binding on the other members of the family if it is found that sale is not for legal necessity. But in this case the position appears to be that the first defendant did not misappropriate the sale proceeds. He has stated that he gave the sale proceeds to his daughters and this can be the reason for the plaintiffs grumbling against the first defendant and other sisters. It is not the case of the plaintiffs that the first defendant sold the schedule-III property to defraud the plaintiffs. When such an intention is absent, the sale made by him should be saved. To say further, if schedule-III property can also be considered as joint family property and decree for partition may be granted in it, still while drawing final decree, the purchaser many plead for allotment of the property that he purchased form the I defendant. This avenue being open, and if other circumstances show that the sale in her favour cannot be assailed, I come to conclusion that the judgment of the trial court in so far as it relates to granting partition in schedule-III of the plaint schedule should be set aside. Hence the following: ORDER i. Appeal is allowed. ii. Judgment of the trial court is modified. iii. Suit in respect of schedule-Ill property is dismissed. iv. There is no order as to costs.