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2021 DIGILAW 366 (KAR)

Hanumanthappa S. C. v. Siddappa

2021-03-04

NATARAJ RANGASWAMY

body2021
JUDGMENT : 1. This appeal is filed by the plaintiff in O.S No.198/1996 challenging the concurrent finding of fact recorded by the Courts below in OS No.198/1996 by which, both the Courts below decreed the suit of the plaintiff for partition and separate possession of his 1/5th share in respect of Item Nos.1, 3 and 5. 2. The parties shall henceforth be referred to as they were ranked before the Trial Court. 3. The facts as stated that led to filing of OS No.198/1996 are that, the plaintiff and defendant Nos.2, 3, 4, 5 and 6 are the children of Defendant No.1 who was the Kartha of the joint family which possessed the suit properties. It is claimed that, at a partition between Defendant No.1 and his brothers, 3 acres 7 guntas of land bearing R.S. Nos.10 and 94 of the Nalavagilu Village, Ranebennur Taluk, had fallen to the share of Defendant No.1, which was acquired by the Karnataka State Industrial Development Board during the year 1968-69 for Harihara Polyfibres Factory and defendant No.1 had received a fanciful compensation of Rs.35,000.00, out of which, defendant No.1 purchased the suit Item No.1 in the name of the mother of the plaintiff. A building was constructed thereon after obtaining loan from the Society. It is contended that the plaintiff was also employed at Harihara Polyfibres Factory and that he was drawing Rs.3,000.00 p.m. Though defendant No.1 was employed at Mysore Kirloskar Factory and was earning Rs.1,500.00 p.m., the income was not sufficient to meet his vices. Thus, the plaintiff purchased 12 she buffalos and also obtained loan from Canara Bank, Harihara, in the name of his mother, which was repaid by the plaintiff out of his salary income and he was maintaining the family and his brothers and sisters. He contended that defendant No.1 was a vagabond and he abandoned the joint family and settled down at Karur in Davangere District and did not turn up till death of his mother. In the year 1994, he had purchased the property at Item Nos. 2, 3 & 4 in the name of Defendant No.1 and had laid foundation to construct four residential houses after obtaining loan from the Housing Board Cooperative Society. In the year 1994, he had purchased the property at Item Nos. 2, 3 & 4 in the name of Defendant No.1 and had laid foundation to construct four residential houses after obtaining loan from the Housing Board Cooperative Society. He contended that the suit Item No.4 was purchased in the year 1994 in the name of Defendant No.1 and thus, all the suit properties were acquired out of the nucleus of the joint family. After defendant No.1 had reentered the lives of the plaintiff and other brothers and sisters, he started persisting suit properties one after the other. The plaintiff claimed that his mother underwent a heart surgery and was hospitalized in an hospital in Bengaluru. During his stay in the hospital, defendant No.1 concocted a document claiming to be the owner in respect of the suit schedule properties by colluding with defendant No.11 and had also created the document styled as sale deed in collusion with defendant No.12 in respect of suit Item No.5. Hence, the plaintiff demanded the defendant to partition the suit schedule properties, which when refused, compelled the plaintiff to file the present suit for partition. 4. Defendant No.1 filed his written statement which was adopted by Defendant Nos.2 to 6, while defendant Nos. 8 to 11 were placed ex-parte. Defendant No.12 filed a separate written statement. 5. Defendant No.1 denied the averments of the plaint and also contended that the suit properties were not acquired out of the funds of the joint family or from the funds contributed by the plaintiff. He also denied the right of the plaintiff to claim partition in the suit properties. Thus, he contended that the plaintiff has no right to claim partition in the suit schedule properties. Defendant No.1 denied the averments of the plaint and contended that Defendant No.1 had lawfully sold one of the items of the suit properties in his favour and that he was the bona fide purchaser of suit Item No.5. 6. Based on these rival contentions, the Trial Court has framed the following issues:- (i) Whether the plaintiff proves that the suit schedule properties are acquired out of the ancestral and joint family nucleus and also his own earnings? (ii) Whether the plaintiff further proves that the sale deeds executed by the defendant No.1 in favour of the defendants 11 and 12 are not binding on him? (ii) Whether the plaintiff further proves that the sale deeds executed by the defendant No.1 in favour of the defendants 11 and 12 are not binding on him? (iii) Whether the defendant No.1 proves that he is the absolute in possession of the suit schedule properties? (iv) Whether the plaintiff is entitled for future mesne profits? (v) Whether the plaintiff is entitled for partition and separate possession of his share in the suit schedule properties? (vi) What order or what decree? 7. The plaintiff was examined as PW.1 and he adduced the evidence of two more witnesses as PW.2 and PW.3 and they marked Exs.P1 to P23. Defendant No.1 was examined a DW.1 and he marked Exs. D.1 to D.19. 8. Based on the oral and documentary evidence, the Trial Court held that the plaintiff was entitled to undivided right, title and interest in suit Item Nos. 1, 3 & 5. In so far as Item No.2 is concerned, the Trial Court held that defendant No.1 had only entered into an agreement of sale in respect of Item No.2 and therefore, that suit property was not available for partition. So far as Item No.4 is concerned, the Trial Court held that defendant No.1 had purchased that item out of his own sources after he retired from service. 9. Being aggrieved by the Judgment and Decree of the Trial Court refusing to grant relief in respect of suit Item Nos. 2 & 4, the plaintiff filed RA No.49/2003 before the First Appellate Court. The First Appellate Court summoned the records of the Trial Court, perused the evidence on record, framed points for consideration and in terms of its Judgment and Decree dtd. 31/7/2007 dismissed the appeal and modified the shares to which the plaintiff was entitled to, from 1/5th to 1/7th. 10. Aggrieved by the aforesaid Judgment and Decree, the plaintiff has filed the present Regular Second Appeal. This appeal was admitted on 28/5/2008 to consider the following substantial questions of law:- (i) Whether the Courts below were justified in holding that item No.2 and 4 of the suit schedule properties are self acquired properties of the 1st defendant and therefore declined partition of those properties? (ii) Whether the First Appellate Court is justified in holding that the plaintiff is entitled only for 1/7th share in item Nos. (ii) Whether the First Appellate Court is justified in holding that the plaintiff is entitled only for 1/7th share in item Nos. 1, 3 and 5 of the suit schedule properties while the Trial Court had granted 1/4th share in those properties? 11. Since there is no dispute regarding the suit Item Nos. 1, 3 & 5 and the entitlement of the plaintiff to the aforesaid items, the discussion would be limited to Item Nos. 2 & 4 of the suit schedule. 12. It is not in dispute that Defendant No.1 did not own or possess suit Item No.2 as its owner, but on the contrary, it is claimed that the suit Item No.2 was purchased by defendant No.1 in terms of agreement of sale as per Ex.D3 and the Defendant No.1 had no title over the said property. Thus, this property was not available for partition and did not constitute a joint family property. Therefore, the Courts below were right in refusing a decree in so far as suit Item No.2 is concerned. The plaintiff did not establish any contra evidence to indicate that defendant No.1 had in fact secured title to the suit Item No.2 and therefore, the finding of the Courts below in respect of the Suit Item No.2 cannot be found fault with. 13. In so far as suit Item No.4 is concerned, it is not in dispute that defendant No.1 was employed in Mysore Kirloskar Ltd. and it is also not in dispute that Defendant No.1 retired from service in the year 1982, while the suit Item No.4 was purchased and registered in his name in the year 1980 or 1983. Therefore, it is probable that suit Item No.4 was purchased by defendant No.1 out his own funds. There is no contra evidence at the instance of the plaintiff to establish that he had contributed any funds towards purchase of suit Item No.4 in the name of defendant No.1. He did not even produce a copy of the sale deed in respect of Item No.4, let along proving that this property was acquired out of the funds contributed by him. 14. Thus, in view of the above, the substantial questions of law framed by this Court are answered in the affirmative and it is held that the Courts below were justified in holding that Item Nos.2 & 4 were not available for partition. 14. Thus, in view of the above, the substantial questions of law framed by this Court are answered in the affirmative and it is held that the Courts below were justified in holding that Item Nos.2 & 4 were not available for partition. In so far as substantial question of law No.2 is concerned, the Trial Court declared that the plaintiff along with defendants were entitled to 1/5th share in the suit schedule property without counting two female heirs who were also entitled to succeed in equal moiety. The First Appellate Court was justified in exercising its powers under Order XLI Rule 33 to rectify the mistake and held that the plaintiff and defendants No.1 to 6 were entitled to 1/7th share in the suit schedule properties. Hence, the substantial question of law No.2 framed by this Court is also held in the affirmative and it is held that the First Appellate Court was justified in declaring 1/7th share of the plaintiff in Item Nos.1, 3 & 5, instead of 1/5th share, as declared by the Trial Court. In view of the above, there is no merit in this appeal and the appeal is dismissed.