Karnataka High Court
Kusuma Jayaram vs K Nagaraj on 7 September, 2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
REGULAR FIRST APPEAL No.577/2003 (INJ)
BETWEEN:
Kusuma Jayaram
W/o. Jayaram
Residing at No.41
II Temple Road
Malleswaram
Bangalore-560003. ...Appellant
(By Sri.V.Tarakaram, Sr.Counsel for
Sri.N.Jagadish Baliga Adv.)
AND:
K.Nagaraj
S/o. Late Katte Anantha Murthy
Since deceased - Represented
by his LRs (a) to (f)
1.(1a) S.N.Gowramma
W/o. I Defendant, Major
2.(1b) K.N.Sreenivas
Ist Son of deceased
Ist defendant, major
3.(1c) K.N.Suryaprakash
2
2nd Son of deceased
Ist defendant (major)
4.(1d) K.N.Vasudha
D/o. deceased I defendant
Major
5.(1e) S.N.Mahalakshmi
Keep of deceased
Ist defendant, major
6.(1f) K.N.Santhosh Kumar
S/o. Keep born to
Ist defendant, major
All are residing at No.62
Banashankari Krupa
II Main, Brindavan Extension
Bannerghatta Road, Arakere
MICO Layout, Bangalore.
7.(2) Indira Bai
W/o. Late Gundu Rao
Aged about 81 years
House No.1213, 23rd cross
Opposite Swimming pool
Jayanagar, Bangalore-11.
8.(3) Madhura
W/o. H.S.Vasudeva Rao
Aged about 48 years
No.809, 9th cross
5th Main, High School Extn.
Shimoga Road, Harihar
Davanagere District.
9.(4) K.Parimala
3
W/o.G.K.Seshagiri
Aged 38 years
No.186, V Cross
Gavipuram Guttahally
Kempe Gowda Nagar
Bangalore-560019.
10.(5) The Secretary to Government
Department of Industries
and Commerce
M.S.Building, Bangalore.
11.(6) The Special Land Acquisition
Officer, KIADB, Near Museum
Kasturba Road
Bangalore. ...Respondents
(By Sri.P.H.Ramalingam for R1 (a-f)
Sri.S.V.Desai for R6, R3, 4 & 5 are sd/-
R2 notice d/w )
****
This Regular First Appeal is filed under section 96 of
CPC against the Judgment and decree dated 8.4.03 passed in
O.S.No.963/96 on the file of the II Addl. Civil Judge (Sr.Dn),
Bangalore Rural Dist., Bangalore dismissing the suit for
partition and separate possession.
This Regular First Appeal coming on for Orders this day,
the Court delivered the following:-
JUDGMENT
This appeal by the plaintiff is directed against the judgment and decree, dated 08.04.2003, passed by the II 4 Additional Civil Judge (Sr.Dn.) Bangalore Rural District, Bangalore, in O.S. No.963/96.
2. By the impugned judgment and decree, the Trial Court has dismissed the suit of the plaintiff.
3. Aggrieved by that, the appellant-plaintiff has filed this appeal.
4. The respondents are defendants 1 to 6 in the Trial Court. The parties will be referred to with reference to their rank in the original suit O.S.No.963/96.
5. Briefly stated the facts are:
The appellant/plaintiff filed suit in O.S.No.963/96 for partition and separate possession. The suit schedule properties are Sy.No.81 measuring 28 acres 12 guntas and Sy.No.82 measuring 8 acres 33 guntas of Nallurahally Village, K.R.Puram Hobli, Bangalore District. The case of the appellant/plaintiff was that the suit schedule properties are joint family properties. Khatha of the suit schedule properties 5 stands in the joint names of defendants 1 and 2. The genealogical tree of the family is as follows:
Katte Ramachar (deceased) Katte Rangachar (deceased) Katte Sreenivasachar Katte Vasudevachar (deceased) (deceased) Katte Seshagiri (deceased) Katte Gundurao (deceased) Wife Indira Bai (70) Katte Subbarao Katte Anantha Murthy Katte Venkatesha Murthy (deceased) (deceased) (deceased) 1st daughter Rathna Wife Venkubai 1. Rama Rao (55) (65) @ Saroja Bai (not married) (Died 8 years back) 2. Leelavathi (49)
1. K.Nagaraj 3. K.V.Seetharam (45)
2. Kusuma 4. Kalavathi (39) W/o.Jayaram
5. Shakambari (36)
3. Madhura W/o.N.S.Vasudeva Rao 6. Pankaja (33)
4. Parimala W/o.G.K.Seshagiri 6
5. The parties are Hindus. They are governed by Hindu Mithakashara law. The suit schedule properties are in joint possession and enjoyment of the plaintiff and the defendants. The plaintiff is urging to divide the properties since long time. The plaintiff came to know that the defendants 1 and 2 are trying to sell the suit schedule properties. The khatha of the suit schedule properties stands in the joint names of Katte Nagaraj and Indira Bai, the defendants 1 and 2. The plaintiff is entitled for a share in the suit schedule properties.
6. The first defendant is the eldest son of Katte Anantha Murthy who died during October, 1952. The plaintiff and defendants 3 and 4 i.e., Madhura and Parimala are the daughters of late Katte Anantha Murthy.
7. Katte Subba Rao and Katte Venkatesh Murthy are the brothers of Katte Anantha Murthy. They have jointly executed release deed in favour of Katte Anantha Murthy during the year 1935 itself. The families of Katte Subba Rao 7 and Katte Venkatesh Murthy have no right in the suit schedule properties.
8. The family of late Katte Gundu Rao are the descendants of Katte Vasudevachar who was the uncle of late Katte Anantha Murthy. Late Katte Gundu Rao was the coparcener of the joint family of late Katte Rangachar, the grand father of late Katte Anantha Murthy. Since Sreenivasachar and his brother Vasudevachar had not partitioned, their descendants have succeeded to the joint family property which is the suit schedule property.
9. The Tahsildar, K.P.Puram Taluk, transferred the khatha of the suit schedule properties in the joint names of Indira Bai and K.Nagaraj i.e., the defendants 1 and 2 as joint holders and Kathedars of the suit schedule properties. The suit schedule properties i.e., Sy.No.81 measuring 28 acres 12 guntas and Sy.No.82 measuring 8 acres 33 guntas, in all 37 acres 05 guntas. Out of which the share of the first defendant is 1/2 of the total extent.8
10. Out of the share of the first defendant, the plaintiff is entitled for 1/4th share i.e., 4 acres and 25¾th gunta. The first defendant was receiving the produce without giving any share to his three sisters. Therefore, the plaintiff has prayed for partition and separate possession of the suit schedule properties.
11. The first defendant has filed his written statement denying the plaint averments and contending that the suit schedule properties are not the joint family properties. The first defendant is not a member of the joint family of the plaintiff or the other defendants. The khatha transferred in the name of the second defendant is a fraud and the first defendant has taken steps. The suit schedule properties exclusively belong to the first defendant.
12. It is stated, the plaintiff is the daughter of Smt.Venku Bai @ Saroja Bai who was the stepmother of the first defendant. Katte Gundu Rao was the grandson of Katte Gopala Rao, the brother of Katte Rangachar. Whereas, 9 Srinivasachar, Krishna Murthy and Vasudeva Rao were brothers. The name of Krishna Murthy has been left out. It is denied that the suit schedule properties are in joint possession and enjoyment of the plaintiff and the defendants.
It is also denied that the plaintiff demanded share in the suit schedule properties. It is also denied that the defendants 1 and 2 intended to sell the suit schedule properties. It is stated, late Katte Gundu Rao, the husband of the second defendant died long back in the year 1928. He filed application to adjudicate him as insolvent. He has stated before the judicial authorities that they do not have any share in the suit schedule properties. He had filed suit in O.S.No.622/45-46. Later on, he withdrew the suit. Inspite of that, in collusion with the revenue authorities, Katte Gundu Rao has managed to get the khatha transferred in his name without notice to the first defendant. After coming to know about it, the first defendant has taken steps to set it right. 10
13. Katte Anantha Murthy, the father of the first defendant had incurred considerable debts at the time of his death on 1.10.1952. He had left behind lot of liabilities including 27 civil suits, in addition to the education and marriage of the plaintiff and other sisters. The first defendant who had joined service as Journalist, performed the marriage of the plaintiff and the other sisters from his own earnings and discharged the debts. During the life time of plaintiff's mother Smt.Saroja Bai @ Venku Bai, the sisters agreed to take lump sum share in the properties in lieu of their claim. Accordingly, it was agreed that 134 acres of land in Sy.Nos.67 to 171, 107 to 134, 141 to 148 of Pattandur Agrahar Village should be left to the joint shares of the sisters. This arrangement was acted upon. The first defendant is the exclusive owner of the remaining properties. The plaintiff is no longer the member of the joint family except claiming rights in the properties of Pattandur Agrahar Village. The plaintiff along with the 4th defendant had sent untenable notice to the first defendant and the first defendant has 11 replied it. Thereafter, on 6.11.1996, the suit in O.S.No.869/96 for partition and separate possession was filed by the 4th defendant. The plaintiff was the second defendant in the said suit. The third defendant had filed her written statement admitting the arrangement. Thereafter, 4th defendant withdrew the suit on 2.12.1996 admitting the right of the first defendant. Thereafter, the plaintiff has filed this suit. The first defendant has improved the suit schedule properties.
14. The suit is barred by limitation. Even assuming that the plaintiff had any right in the suit properties, it has been extinguished by adverse possession right from the year 1982. The suit is barred by resjudicata. Therefore, the first defendant has prayed for dismissal of the suit.
15. The LR No.6 of the first defendant has filed his written statement taking similar stand which is taken by the first defendant.
12
16. The defendant No.3 has filed written statement denying the plaint averments and contending that Katte Ramachar is the ancestor of the family. During the regime of Katte Srinivasachar, Katte Anantha Murthy, the father of the plaintiff and defendants 1 and 4 and other descendents of Katte Ramachar, Gopala Rao, the ancestor of late Katte Gundu Rao, Sy.Nos.81 and 82 measuring 37 acres 38 guntas situated at Nallurahally village have fallen to the share of Katte Gopala Rao. The family of Srinivasachar took over the other properties in Sy.Nos.1 to 17,19, 35 to 40 of Pattandur Agrahar Village and Sy. Nos.79 and 80 of Nallurahally village. The suit schedule properties belonged to Katte Gopala Rao and his descendants and they are the absolute owners of the suit schedule properties. The suit schedule properties never belonged to descendants of Katte Srinivasachar including Katte Anantha Murthy. The claim of the plaintiff that the suit schedule properties are ancestral properties of Katte Anantha Murthy and he was in possession and enjoyment of suit schedule properties is false and baseless. It is stated, in the 13 year 1958, when the reclasification of inam lands was done by the government, the suit schedule lands belonged to Late Katte Gundu Rao. Thus Katte Guindu Rao was the kathedar of the suit schedule properties right from 1958 to 1992. At no point of time, late Katte Anantha Murthy was the owner of the suit schedule properties. It is stated, kathedar Katte Gundu Rao died on 15.09.1990. After his death, his wife Indira Bai and children became the owners of the suit schedule properties in the year 1992. Khatha of the suit schedule properties has been transferred in the joint names of Indira Bai and the first defendant. The inclusion of the first defendant as joint Khathedar is false. The suit schedule properties do not belong to Katte Anantha Murthy. The plaintiff cannot claim any share in the suit schedule properties.
17. It is stated, the plaintiff and 4th defendant issued legal notice on 1.09.1995. In the said notice, the suit schedule properties are not included. The 4th defendant had filed suit 14 against the plaintiff, the first defendant and defendant No.4 in O.S.No.869/96 for partition and separate possession. The suit was contested by the first and third defendants and it was withdrawn by the 4th defendant by filing a memo stating that the suit schedule properties do not belong to the family of Katte Anantha Murthy and not a joint family properties. The matter is already decided by the competent Civil Court in O.S.No.869/96. The suit is hit by the principle of resjudicata. Therefore, the defendant No.3 has prayed for dismissal of the suit.
18. The Trial Court has framed the following issues:
1. Whether the plaintiff proves that she and the defendants No.1 to 4 constitute members of joint Hindu family?
2. Whether she proves that the schedule properties belong to the said joint Hindu family.
3. Whether the plaintiff proves that the valuation made by her is proper and court fee paid is sufficient? 15
4. Whether the suit is barred by law of limitation?
5. Whether the suit is hit by Principles of res-judicata?
6. Whether the plaintiff is entitled for partition and separation of her alleged 1/4th share?
7. What decree or order?
19. The Trial Court has answered issue Nos. 1 to 6 in the negative and consequently, has dismissed the suit.
20. Aggrieved by that the appellant/plaintiff has filed this appeal.
21. The learned counsel for the appellant contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper prospective. Further he submitted that the reasoning of the Trial Court is perverse. He also submitted that evidence on record clearly shows that the suit schedule properties are joint family properties and the plaintiff is entitled for 1/4th share in the 16 half share of which comes the first defendant. Further he submitted that through Ex.P1 release deed Katte Subba Rao and Katte Venkatesh Murthy have relinquished their rights in the ancestral properties in favour of Katte Anantha Murthy by taking 5 and odd acres of land in Sy.No.27 of Pattandur Agrahar Village. Further he submitted that exhibits P2 to P5 clearly show that the suit schedule properties are joint family properties which are jointly held by the first and the second defendants and therefore, the plaintiff is entitled for a share in the suit schedule properties. He also submitted that the Trial Court has erred in giving importance to the admission which can be explained.
23. Placing reliance on the decision of this Court reported in AIR 1991 Kar page 40 and AIR 1974 SC page 471, the learned counsel for the appellant submitted that a stray sentence in the cross-examination cannot be treated as admission and evidentiary admissions are not conclusive and can be shown to be wrong. In the present case, the Trial 17 Court has erred in placing reliance on the stray sentence instead of looking into the pleadings and evidence as a whole. He, therefore, submitted that impugned judgment and decree cannot be sustained in law.
24. As against this, the learned counsel for the respondents 1(a) to 1(f) submitted that the impugned judgment and decree does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly dismissed the suit and therefore, the impugned judgment and decree does not call for interference. Further he submitted that the suit schedule properties were never joint family properties. He also submitted that in exhibit D1 notice, the suit schedule properties have not been included. O.S.No.869/1996 was filed by one of the sisters and it was withdrawn. He also submitted that the plaintiff must prove the existence of joint family. The plaintiff has not discharged her burden and she is not entitled for any share. He also submitted that the 18 claim of the plaintiff is barred by limitation. He also submitted that PW1 in her cross-examination has admitted that the suit schedule properties are not ancestral properties. Therefore, the plaintiff cannot claim any share in the suit schedule properties. The suit schedule properties do not exist. He therefore submitted that the impugned judgment and decree does not call for any interference.
25. In reply, the learned counsel for the appellant inviting my attention to paragraphs 14 and 15 of the written statement filed by the first defendant submitted that there is no proof of family arrangement as pleaded in para 15 of the written statement. Further he submitted that the admission is not conclusive and it can be explained. He, therefore, submitted that the impugned judgment and decree cannot be sustained in law.
26. I have carefully considered the submissions made by the learned counsel for the appellant and also the learned counsel for the respondents 1(a) to 1 (f).
19
27. The points that arise for my consideration are:
1. Whether the plaintiff is entitled for a share in the suit schedule properties?
2. Whether the impugned judgment and decree calls for interference?
28. Point No.1:
It is relevant to note, the suit is for partition and separate possession. The plaintiff contends that the suit schedule properties are joint family properties and she is entitled for a share. The khatha of the suit schedule properties stands in the joint names of Indiara Bai, the wife of Gundu Rao and the first defendant. The plaintiff is entitled for 1/4th share in the half share which comes to the first defendant.
29. The first defendant contends that the suit schedule properties are not joint family properties and they are his exclusive properties. There was an arrangement in 20 the family during the lifetime of plaintiff's mother Smt.Saroja Bai @ Venku Bai and in the said arrangement, 134 acres of land in survey nos. 67 to 171, 107 to 134, 141 to 148 at Pattandur Village was left to the joint shares of his sisters. He also contends that he has perfected his title by adverse possession.
30. The third defendant has contended that the suit schedule properties belonged to Katte Gopal Rao and his descendants and they are the absolute owners. The suit schedule properties never belonged to descendants of Katte Srinivasachar including Katte Anantha Murthy. The claim of the plaintiff is false and baseless.
31. The plaintiff has examined herself as PW1 and Exhibits P1 to P5 have been marked.
32. The defendants have not examined any witnesses, but Exhibit D1 has been marked in the cross-examination of PW1.
21
33. PW1 has deposed that the suit schedule properties are ancestral properties. Katte Ramachar had a son by name Katte Rangachar. He had two sons namely Katte Srinivasachar and Katte Vasudevachar. There was no division of properties amongst the sons of Katte Rangachar. As the suit schedule properties are joint family properties, Katte Srinivasachar and Katte Venkatesha Murthy had equal rights in the suit schedule properties. Katte Vasudevachar had one son by name Sheshagiri Rao. Seshagiri Rao had one son by name Gundu Rao. Seshagiri Rao and Gundu Rao are no more. Indira Bai, the second defendant is the wife of Gundu Rao. Katte Srinivasachar had three sons namely Katte Subba Rao, Katte Anantha Murthy and Katte Venkatesha Murthy. Katte Anantha Murthy is her father. Katte Subba Rao and Katte Venkatesha Murthy executed release deed in favour of her father Katte Anantha Murthy relinquishing their rights in the ancestral properties as per Exhibit P1 release deed. Herself and defendants are joint family members. The suit schedule properties stand in the 22 name of Indira Bai and Katte Nagaraj, i.e., defendants 1 and
2. The suit schedule properties have to be divided between their family and family of Indira Bai. Her father is entitled for 19 acres and 19 guntas in the suit schedule properties. Herself, the first defendant and defendants 3 and 4 are the children of Venku Bai @ Saroja Bai. Her sisters defendants 3 and 4 have taken their share during the lifetime of her brother. She is entitled for a share in the suit schedule properties.
34. In her cross-examination, PW1 has stated, in Exhibit D1 they have asked for their share in the joint family properties. The suit schedule properties are not shown in Exhibit D1 as the suit schedule properties are not joint family properties. It is true that the suit schedule properties belong to Katte Ramachar. After the death of Katte Ramachar the suit schedule properties have come to Gundu Rao and he is in possession. Gundu Rao was the son of Seshagiri Rao. It is true, from 1958 to 1992 the suit 23 schedule properties were standing in the name of Gundu Rao. Second defendant is the wife of Gundu Rao. Gundu Rao had one son and two daughters. They have a share in the suit schedule properties. Second defendant has a share in the suit schedule properties, but she has asked the share in her brother's share. The property has not been divided earlier. She has asked the share as the properties are ancestral properties. Fourth defendant had filed suit in OS No.869/1996 and she has withdrawn the suit by filing a memo. After the death of Gundu Rao the suit schedule properties stand in the name of defendants 1 and 2. She has denied the suggestion that suit schedule properties are not ancestral properties and she is not entitled for a share in the suit schedule properties.
35. Exhibit P1 is the release deed dated 14.2.1935 executed by Katte Subbbarao and Katte Venkatesha Murthy in favour of Katte Anantha Murthy relinquishing their rights in the ancestral properties by taking 5 and odd acres of land 24 in survey No.27 at Pattandur Village. Exhibit P2 is the mutation extract. It shows that survey No. 81 measuring 28 acre 12 guntas and survey No.82 measuring 8 acres 33 guntas was standing in the name of Gundu Rao. After the death of Gundu Rao mutation has been effected in the name of defendants 1 and 2. Exhibit-P2 indicates that the suit schedule properties are joint family properties. Therefore, mutation has been effected jointly in the name of defendants 1 and 2 after the death of Gundu Rao. Exhibit P3 is the RTC extract in respect of survey No.81. Ex.P.4 is RTC extract in respect of Sy.No.82. In column No.9, the names of Indira Bai and K.Nagaraj i.e., the defendants 1 and 2 have been shown in exhibits P3 and P4. Exhibit P5 is the encumbrance certificate in respect of survey Nos.81 and 82.
36. Exhibit D1 is legal notice issued by plaintiff and defendant No.4.
37. From the evidence on record, it is clear, the suit schedule properties are ancestral properties. Exhibit P1 is 25 the release deed dated 14.02.1935. It is executed by Katte Subbarao and Katte Venkatesha Murthy in favour of Katte Anantha Murthy relinquishing their rights in the ancestral properties by taking 5 and odd acres of land in survey No.27 at Pattandur Village. Thereafter, the suit schedule properties have been standing in the name of Gundu Rao, the husband of the second defendant. After the death of Gundu Rao mutation has been effected in the name of defendants 1 and 2 as per Exhibit P2. Exhibit P2 indicates that the suit schedule properties are ancestral properties. Exhibits P3 and P4 are the RTC extracts in respect of Sy Nos.81 and 82 of Nallurahalli village. They show the names of defendants 1 and 2 in column No.9. Exhibits P2, P3 and P4 clearly show that the suit schedule properties are ancestral properties. The defendants have not adduced any evidence. They have contended that the suit schedule properties are not ancestral properties and the plaintiff is not entitled for any share. The first defendant has contended that there was family arrangement and he is the exclusive owner of the suit 26 schedule properties. It is also contended that the first defendant has perfected his title by adverse possession. In support of this plea, the first defendant has not adduced any evidence. The trial Court taking into consideration the admission of PW1 has dismissed the suit which is totally incorrect. The evidence on record clearly shows that the suit schedule properties are ancestral properties. In absence of any evidence on behalf of the defendants their defence cannot be accepted. No doubt, in the cross-examination, PW1 has admitted that in Exhibit D.1 the suit schedule properties are not mentioned and they are not ancestral properties. If the entire evidence on record is read as a whole, then, it is clear, the plaintiff is claiming share in the ancestral properties. A stray sentence in the evidence of PW1 cannot be of any consequence. Reference can be made to the decision of this Court and also of the Supreme Court reported in AIR 1991 Kar page 40 and AIR 1974 SC page 171 wherein it has been held that evidentiary admissions are not conclusive and they can be explained and shown to be wrong. In the present case, the admission of the plaintiff 27 cannot be of any consequence. The evidence on record clearly establishes that the suit schedule properties are ancestral properties and the plaintiff is entitled for a share. Therefore, the Trial Court was not justified in dismissing the suit. The plaintiff is entitled for a share in the suit schedule properties i.e., survey No.81 measuring 28 acres 12 guntas and survey No.82 measuring 8 acres 33 guntas of Nallurahalli village. The plaintiff's father Katte Anantha Murthy was entitled for half share in the suit schedule properties. The plaintiff, the first defendant and defendants 3 and 4 represent the branch of Katte Anantha Murthy being th his children. Therefore, the plaintiff is entitled for 1/4 share in the half share of her father. Point No.1 answered, accordingly.
38. Point No.2:
The Trial Court has failed to consider the evidence on record in proper perspective. It has misread Exhibit P1 and the evidence of PW1. The evidence on record clearly 28 establishes that the suit schedule properties are ancestral properties and the plaintiff is entitled for a share. Therefore, the impugned judgment and decree cannot be sustained in law. Point No.2 answered, accordingly.
39. Accordingly, the appeal is allowed and the impugned judgment and decree dated 08.04.2003 passed by the Trial Court in O.S.No.963/1996 is hereby set aside. The th suit of the plaintiff is decreed granting 1/4 share in the half share of Katte Anantha Murthy in the suit schedule properties. It is stated that part of the suit schedule property has been acquired. Therefore, the plaintiff is entitled for proportionate compensation.
Sd/-
JUDGE SM/DR