Karnataka High Court
Sri J M Annaiah vs Sri Nanjappa on 1 August, 2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE H.BILLAPPA
RFA No.1056/2007
BETWEEN :
1 SRI J M ANNAIAH
AGED ABOUT 48 YRS.,
2 SRI KALEGOWDA
AGED ABOUT 50 YRS.,
3 SRI SHIVARAMU
AGED ABOUT 36 YRS.,
ALL ARE S/O LATE G M MALIGEGOWDA,
R/O IKANAHALLI VILLAGE,
KIKKERI HOBLI,
KRISHNARAJAPET,
MANDYA 571426.
...APPELLANTS
( BY SRI VENKATESH R BHAGAT, )
AND :
1 SRI NANJAPPA
S/O LATE G M MALIGEGOWDA,
MAJOR,
2 SMT KALAMMA
W/O LATE RANGAPPA
MAJOR,
2
3 SMT THAYAMMA
W/O T DEVEGOWDA
MAJOR
ALL ARE R/O IKANAHALLI VILLAGE,
KIKKERIHOBLI, KRISHNARAPET TALUK,
MANDYA 571426.
...RESPONDENTS
( BY SRI P. MAHESH WITH B.J. KRISHNA, ADVOCATES
FOR R1 AND R3.
R2--NOTICE ERVED)
THIS RFA IS FILED UNDR SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED
21.03.2007 PASSED IN O.S.NO.120/2006 (OLD
NO.1/2002) ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) AND JMFC., K.R. PERT., DISMISSING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal by the plaintiffs is directed against the judgment and decree, dated 21.03.2007, passed by the Civil Judge (Sr.Dn.) and JMFC, K.R.Pet, in O.S.No.120/2006 (old Number No.1/2002).
2. By the impugned judgment and decree, the Trial Court has dismissed the suit of the plaintiffs.
3. Aggrieved by that, the appellants-plaintiffs 3 have filed this appeal.
4. The respondents are the defendants 1 to 3 in the Trial Court. The parties will be referred to with reference to their rank in the Original Suit O.S No.120/2006.
5. Briefly stated the facts are:
The appellants-plaintiffs filed suit in O.S.No.120/2006 (Old No.1/2002) for partition and separate possession of the suit schedule properties. The case of the appellants- plaintiffs was that late Sri.G.M.Maligegowda, the propositus divided the joint family properties through partition deed dated 10.09.1989, except 'B' schedule property. It was retained by late Sri.G.M.Maligegowda. 'A' schedule properties were allotted to Sri.G.M.Maligegowda with a condition that the properties should be divided equally amongst the four sons after the death of the parents. Sri.G.M.Maligegowda died intestate in the year 1994.
6. Sri.Marigowda, the first son of late Sri.G.M.Maligegowda died in the year 1997 leaving behind him, his wife Smt.Thayamma, children Shivaramu, Jayaramu, Anand and Radha. The plaintiff No.3 is the manager/head of his Branch and has filed this suit for and 4 on behalf of all the members.
7. Smt.Subbamma, the wife of G.M.Maligegowda was not keeping well. She was looked after by the 2nd defendant. After partition, Sri.G.M.Maligegowda was under
the influence of the 2nd defendant. To knock of the suit schedule properties, the defendants 2 and 3 in collusion with the 1st defendant have created several documents. The plaintiff No.1 got issued legal notice dated 15.12.2000 to the Tahasildar, Krishnarajapet, Revenue Inspector, Kikkeri Hobli and Village Accountant. The defendants got executed the registered will dated 09.11.2000 by Smt. Subbamma though she had no capacity to execute the will. RTC entries were changed. Therefore, the plaintiffs filed R.Mis.184/2000-01 before the Assistant Commissioner, Pandavapura, challenging the revenue entries. It was dismissed on 30.11.2001 on the ground that they have not challenged the registered sale deed dated 04.01.2001 alleged to have been executed by Smt.Subbamma in favour of the defendants 2 and 3. Aggrieved by that, the plaintiffs filed R.P.No229/2001. Stay was granted. In the meanwhile, Smt.Subbamma died on 27.03.2001. 5
8. Smt. Subbamma had no right to sell the 'A' schedule properties in view of the provision made in the partition deed. Since late Sri.G.M.Maligegowda died intestate, 'A' schedule properties have to be divided amongst the children of Maligegowda. Subbamma could not have conveyed the property to the defendants 2 and 3. Therefore, the sale is void-ab-initio.
9. It is stated, after the death of Sri.G.M.Maligegowda, the plaintiffs started cultivating ¾ share on the western side in Item No.1, ¾ share on the Eastern side in Item No.2, ¾ share on the southern side in Item No.3, of the suit 'A' schedule properties. They are entitled to continue till the properties are divided by meets and bounds.
10. The house property mentioned in the partition deed is a cowshed and is left to 3 rd plaintiff''s branch by agreement. The parents were living in the 'B' schedule house. It was agreed that the house should be divided amongst four sons after the death of the parents.
11. Subsequently, the plaintiffs came to know that 'B' schedule property has been sold in favour of the 2nd 6 defendant and her husband Rangappa. The plaintiffs obtained the copy of the sale deed dated 17.01.1992. 'B' schedule house was constructed in the year 1980, The house is not sold and only the site is sold. Late Sri.G.M.Maligegowda had no right to sell the house, The sale is not binding on the plaintiffs. Therefore, the plaintiffs have prayed for partition and separate possession of the suit schedule properties.
12. The defendant No.3 i.e., the respondent No.3 has filed her written statement contending that Sri G.M.Maligegowda divided the joint family properties and palupatti was prepared. The suit 'A' schedule properties were allotted to the share of Sri G.M.Maligegowda and his wife for maintenance and a provision was made that the property should be divided equally amongst his four sons after the death of the parents which is not sustainable in law. It denied that the documents are created. It is stated, the appeal in R.Mis.184/200-01 was dismissed on 30.11.2001 and R.P.No.229/2000 was dismissed on 06/05/2002. Smt. Subbamma died on 27.03.2001. It is denied that Sri G.M.Maligegowda and Smt. Subbamma had 7 no right to convey the property and the plaintiffs are entitled for 3/4th share. It is stated, suit 'A' & 'B' schedule properties were allotted to the parents for their maintenance. During their life time, the parents were enjoying the suit schedule properties. The recital in the palupatti restricting the right of the parents is invalid in law. The claim of the plaintiffs that they are entitled for a share in the suit schedule properties is baseless. After partition the parties were enjoying their respective shares. The parents were enjoying the suit schedule properties as absolute owners. Since the parents were not getting proper income to meet their needs, Late Sri G.M.Maligegowda sold the vacant site to Rangappa and he was put in possession of the site and katha was transferred. Rangappa put up a construction after obtaining necessary licence. The plaintiffs have no right, title or interest in the 'B' schedule property.
13. After the death of Sri G.M.Maligegowda, his wife continued in possession of the suit 'A' schedule properties. As per the provisions of Hindu Succession Act, the mother of the defendants is the absolute owner of suit 'A' schedule properties. Katha and RTC entries were 8 transferred in the name of the mother. The mother acquired the absolute ownership. For legal necessity, the mother sold the suit 'A' schedule properties through registered sale deed dated 04.01.2001 in favour of the defendants.2 and 3. They are in possession and enjoyment of the suit 'A' schedule properties. It is stated, the 2nd defendant has adopted the written statement filed by the 3 rd defendant. Therefore, the 3rd defendant has prayed for dismissal of the suit.
14. The trial Court has framed the following issues;
1. Whether the genealogy of family shown by the plaintiffs is correct?
2. Whether the plaintiffs prove that the suit schedule properties are the ancestral joint family properties of themselves and the defendants?
3. Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit schedule properties along with the defendants as joint owners?
4. Whether the defendant No.3 proves that the defendants 2 and 3 are the owners and possessors of the 'A' schedule properties?
5. Whether the suit is bad for non-joinder and mis-joinder of parties?
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6. Whether the valuation made and the court fee paid is improper?
7. Whether the plaintiffs are entitled for the reliefs sought for?
8. What order or decree?
15. The trial Court has answered issue Nos. 1 and 4 in the affirmative and issue Nos.2, 3, 5, 6 and 7 in the negative and consequently, has dismissed the suit.
16. Aggrieved by that, appellants-plaintiffs have filed this appeal.
17. The learned counsel for the appellants 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 perspective. Further he submitted that only life interest was created in favour of the parents and the recitals in the partition deed show that the parents should enjoy the properties during their lifetime and thereafter, four sons of late Sri G.M.Maligegowda should divide the properties amongst themselves equally and therefore, the impugned judgment and decree cannot be sustained in law. Further 10 he submitted that Section 14(2) of the Hindu Succession Act is applicable and not Section 14(1). He also submitted that neither G.M.Maligegowda nor Smt. Subbamma had any right to alienate the suit schedule properties. Therefore, the alienation in favour of the defendants.2 and 3 and Rangappa does not bind the plaintiffs. Further he submitted that the suit schedule properties were allotted to the share of Sri.G.M.Maligegowda and therefore, the plaintiffs are entitled for a share in the suit schedule properties. He placed reliance on the decision reported in AIR 2005 Kar. Page 30.
18. As against this, the learned counsel for the respondents.1 and 3 submitted that the impugned judgment and decree does not call for interference. 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 have been allotted to the parents for their maintenance and the condition if any is not binding on them. He also submitted that the suit schedule properties have been allotted 11 recognizing the pre-existing right and therefore, Section 14(1) of the Hindu Succession Act is applicable and not Section 14(2). He therefore submitted that the suit schedule properties have come to Smt. Subbamma as absolute owner. As she was suffering from ill-health, she has sold the property in favour of the defendants 2 and 3. Therefore, the impugned judgment and decree does not call for interference. Further he submitted that the 2nd defendant and her husband are in possession and enjoyment of the 'B' schedule property since 1992 and the suit has been filed in the year 2002 after the lapse of several years and therefore, the impugned judgment and decree does not call for interference. In support of his submission, the learned counsel for the respondents 1 and 3 placed reliance on the following decisions:
1. 1999(1) KCCR (SN4) page 3
2. (1977) 3 SCC page 99
3. AIR 2001 KAR page 246
19. I have carefully considered the submissions made by the learned counsel for the parties.
20. The points that arise for my consideration are: 12
I. Whether the plaintiffs are entitled for a share in the suit schedule properties?
II. Whether the impugned judgment and decree calls for interference?
21 POINT NO.1: It is relevant to note, the suit is for partition and separate possession of the suit schedule properties. It is not in dispute that the suit schedule properties were joint family properties and through partition dated 10.09.1989, the suit schedule properties have been allotted to the parents for their maintenance with a condition that the suit schedule properties shall be divided equally amongst the four sons after the death of the parents. The plaintiffs contend their parents are no more and therefore, they are entitled for a share in the suit schedule properties. 'A' schedule properties have been sold in favour of the defendants 2 and 3 through Ex.D.8 and 'B' schedule property has been sold in favour of the 2nd defendant through Ex.D.2. The plaintiffs contend that the alienation does not bind them. In view of the condition in the partition deed they are entitled for 3/4th share in the suit schedule 13 properties.
22. PW.1 in his evidence has stated that the suit schedule properties were allotted to his father in the partition. It was agreed that after the death of the father, the suit schedule properties shall be divided amongst four sons equally. The properties were not left for maintenance.
23In his cross examination, PW1 has stated that the partition took place on 10.09.1989 during the lifetime of his father and one share was given for maintenance of the parents.
24. PW2 has deposed that a palupatti was prepared on 10.09.1989. In the said palupatti it is mentioned that the property retained for maintenance shall be divided equally amongst the four children after the death of the parents. He has written the palupatti.
25. PW3 has deposed that palupatti was prepared on 10.09.1989 and it was written in the palupatti that the properties retained for maintenance, shall be divided amongst the four children equally after the death of the parents.
26. DW1 has deposed that there was division and 14 'A' and 'B' schedule properties were allotted his parents for their maintenance. His father died in the year 1994. His mother continued in possession and enjoyment of the properties. The palupatti does not confer any right, title or interest in the suit schedule properties to the plaintiffs.
27. DW2 has deposed that the suit schedule properties were left for maintenance of her parents. Her father died in the year 1974. Thereafter, her mother was in possession of the properties. Her mother sold 'A' schedule properties. Her father sold 'B' schedule property in favour of the 2nd defendant and her husband Rangegowda. Rangegowda has put up a construction. Her mother was suffering from Cancer. For her maintenance she sold "A" schedule properties to second and third defendants and they are in possession and enjoyment of the suit schedule properties.
28. DW3 has deposed defendants 2 and 3 are in possession of the suit schedule properties. Suit schedule properties were left for the maintenance of Maligegowda and Subbamma and Subbamma sold the properties in favour of defendants 2 and 3.
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29. Exhibit P.2 is the copy of the legal notice dated 15.12.2000. Exhibits P3. To P.10 are the RTC extracts. Exhibit P11 is the certified copy of the sale deed dated 17.1.1992. Ex.P12 is the demand register extract.
30. Ex.D.2 is the sale deed dated 17.01.1992 in favour of the 2nd defendant and her husband is in respect of the suit 'B' schedule property. Ex.D.8 is the sale deed dated 04.01.2001 in favour of the defendants 2 and 3 in respect of the suit 'A' schedule properties. Exhibits D.3 to D.6 are the tax paid receipts. Ex.D7 is the demand register extract.
31. From the evidence on record, it is clear, the suit schedule properties were the joint family properties. In the partition dated 10.09.1989, suit 'A' and 'B' schedule schedule properties have been allotted to the parents for their maintenance with a condition that the suit schedule properties shall be divided amongst the four sons after the death of the parents. In the meanwhile, the parents have sold 'A' and 'B' schedule properties through Exs.D.2 and D8. The plaintiffs contend that the alienation does not bind them and they are entitled for a share in the suit schedule 16 properties. In C.J. Sheri vs. Savitri Y. Chagule reported in AIR 2005 Kar page 30, this Court has held devolution of property takes place under Ex.D.1 partition deed and the plaintiff has no right by way of succession. In K.Muniswamy vs. K.Venkataswamy reported in AIR 2001 Kar page 246 this court has held, the property allotted to the share of the parents was absolute in view of the terms that they should enjoy the property in the manner they like and the stipulation that the parties shall take equal share after the demise of the parents cannot be interpreted to override the clear terms of grant. In Raghubir Singh and others vs. Gulab Singh and others reported in 1999(1) KCCR (SN4) page 3, the Hon'ble Supreme Court has held by force of sub Section (1) of Section 14, the widow's limited interest gets automatically enlarged into absolute right notwithstanding any restriction placed under the document or the instrument. Sub Section (2) of Section 14 applies to the instruments, decrees, awards, gifts etc., which create an independent or new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or 17 recognize or confirm the share in the property of pre- existing right to maintenance. In V. Tulasamma and others vs. Shesha Reddy reported in 1977(3) SCC page 99 the Hon'ble Supreme Court has held that Section 14(2) is in the nature of a proviso to Section 14(1), and Section 14(1) applies to the properties granted to a female Hindu by virtue of pre-existing right. Section 14(2) applies when property is granted to female Hindu for the first time without any pre-existing right. In the present case, the properties have been allotted to the parents for their maintenance recognising their rights. G.M. Maligegowda had a share in the joint family properties and his wife had right of maintenance. The condition if any is of no consequence. "B" schedule property has been sold by G.M. Maligegowda. After the death of Maligegowda, "A"schedule property has come to his wife. Section 14(1) of the Hindu Succession Act applies and not Section 14(2). The alienation by G.M. Maligegowda and his wife in favour of the defendants 2 and 3 and Rangegowda is valid. The plaintiffs are not entitled for any share in the suit schedule properties point No.1 answered, accordingly. 18
32. POINT NO.2 The trial Court on proper consideration of the material on record has rightly dismissed the suit holding that the plaintiffs are not entitled for any share and therefore, the impugned Judgment and decree does not call for interference. There is no merit in this appeal and therefore, it is liable to be dismissed.
Accordingly, the appeal is dismissed.
No costs, in the circumstances of the case.
Sd/-
JUDGE Rms