Karnataka High Court
Puttakkaiah vs Basamma W/O Late Basappa on 22 September, 2012
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
REGULAR FIRST APPEAL NO.540 OF 2005
BETWEEN:
SMT.PUTTAKKAIAH
W/O.LATE PATEL NANJAPPA
MAJOR, HOUSEHOLD
R/O.BEEMANHALLI, KASABA HOBLI
H.D.KOTE TALUK
DISTRICT MYSORE-570 001 ... APPELLANT
(BY SMT.SUKANYA, H.D., FOR
SRI.MAHANTESH S HOSMATH, ADV.)
AND:
1. SMT.BASAMMA
W/O.LATE BASAPPA
SINCE DEAD BY LEGAL REPRESENTATIVES
GURUSWAMY
S/O.BASAPPA, 43 YEARS
R/AT RAJAGOUDANAHAUNDI VILLAGE
KASABA HOBLI
H.D.KOTE TALUK
DISTRICT MYSORE-570 001
2. SMT.SHIVAMMA
W/O.SOMANNA
50 YEARS HOUSEHOLD
R/O.RAJEGOWDANAHUNDI VILLAGE
KASABA HOBLI
H.D.KOTE TALUK-570 001
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3. SMT.KAMALAMMA
W/O.THOPPEGOWDA
BASAVARAJAPAA HOUSEHOLD
35 YEARS, R/O.HOMMARAGALII VILLAGE
KASABA HOBLI, H.D.KOTE TALUK-570 001
4. SMT.SAROJAMMA
W/O.PRABHUSWAMY
30 YEARS, HOUSEHOLD
R/O.JAKKAHALLI VILLAGE
KASABA HOBLI
HD KOTE TALUK
DISTRICT MYSORE-570 001 ... RESPONDENTS
(BY SRI.R.D.RENUKARADHYA, ADV. FOR
P.NATARAJU ASSOCIATES, ADV. FOR R1;
R2 TO R4 ARE SERVED)
RFA FILED UNDER SECTION 96 OF CODE OF CIVIL
PROCEDURE AGAINST THE JUDGMENT AND DECREE
DATED:10.02.2005 PASSED IN O.S.120/1997 ON THE FILE
OF THE CIVIL JUDGE, (SR.DN.), JMFC, HUNSUR, PARTLY
DECREEING THE SUIT FOR DECLARATION, PARTITION
AND ALSO FOR PHYSICAL POSSESSION.
THIS REGULAR FIRST APPEAL COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This is a first defendant's appeal against the judgment and decree in O.S.No.120/1997 wherein the Trial Court has decreed the suit of the plaintiff for partition and separate possession granting equal share in the suit schedule property.
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2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. The father of the plaintiff Patel Puttappa had two wives viz., Smt.Nanjamma and Smt.Boramma. The plaintiff is the daughter of the first wife Smt.Nanjamma. The first defendant Smt.Puttakkaiah is the daughter of Smt.Boramma, the second wife. The case of the plaintiff is plaintiff and defendant constitute an undivided Hindu family and all the ancestral properties are in their joint possession and enjoyment. There has been no partition or division of the joint family properties. The joint family properties are set out in the schedule to the plaint. After their marriage, the plaintiff and the defendant are living separately at different places i.e., plaintiff at Rajegowdana Hundi and the defendant is at Bheemanahally. Under a family arrangement, the plaintiff and defendant looked after and cultivated lands situated at Bheemanahally and Muskere villages tentatively taking into consideration their respective nearness to the lands. The plaintiff and the defendant are in joint possession and enjoyment of the plaint schedule joint family lands. Since no partition or 4 division has taken place, their joint family status still continues and subsists. Even after the family arrangement, the entries in the RTC disclose that they are in joint possession and cultivation of the schedule lands.
3. In paragraph 5, the plaintiff has set out in sub paragraph A and B the lands which are exclusively cultivated by the plaintiff's son Guruswamy and the lands which are exclusively cultivated by the defendant according to the family arrangement. It is their case that the income derived from the lands were equally shared by the plaintiff and the defendant. The plaintiff alleges that there arose ill will and misunderstanding between the women folk of both the families and therefore, they started living separately. But the properties continued in their joint possession and enjoyment. Since the properties are situated in two villages and they are living in different villages, the RTC entries were made as per family arrangement. There has been no partition. The plaintiff requested the defendant to effect the partition and give her half share. The defendant did not comply. Therefore, 5 she got issued a legal notice dated 25.01.1992 demanding equal share in the schedule properties. A reply was sent on 02.03.1996 denying the claim. Therefore, the plaintiff was constrained to file a suit for partition to declare that the entries in the RTC extract are only family arrangement and no partition has taken place and requested for partition of the suit schedule property by metes and bounds and to put the plaintiff in actual physical possession of her lawful half share in all the schedule properties. In the schedule, they have set out ten items of the properties out of which eight items are landed properties and two are house properties.
4. After service of summons, the defendant has entered appearance and filed detailed written statement. She admitted the relationship between the parties. But she denied that the plaintiff and the defendant constitute Hindu undivided family and that all the ancestral properties are in joint possession and enjoyment of both the plaintiff and the defendant. She specifically pleaded that there was already partition between plaintiff and the defendant on 6 10.08.1974 and both of them have divided their ancestral joint family properties and are cultivating their respective shares. In para 2 of the written statement, the defendant has specifically set out what are the properties which have fallen to the share of the plaintiff and what are the properties which are fallen to her share in the said partition. Mutation entries have been made accordingly and each of them are in enjoyment of the properties exclusively. She denied all other allegations in the plaint. She admitted the issue of legal notice and reply to that notice. She has also contended that the plaintiff has not included Sy.No.9 measuring 10 acres and 38 guntas in the schedule and the court fee paid is insufficient. In the alternative, she has also claimed adverse possession. She contended that the suit is to be dismissed on that ground itself.
5. On the aforesaid pleading, the trial court has framed the following issues:
1) Whether the plaintiff proves that the suit schedule properties are the joint family properties of herself and the defendants? 7
2) Whether the plaintiff proves that as per the attentive family arrangements, the revenue records stands in her name and in the name of defendant but actually it was not a partition of joint family properties?
3) Whether the defendant proves that there was a partition in the family on 10.08.1974 accordingly the sharers enjoyed their respective shares in the suit schedule properties?
4) Whether the plaintiff is entitled for partition and separate possession of half share in the suit schedule properties?
5) What decree or order?
6. The plaintiff in order to substantiate her claim, examined Guruswamy, her son as PW1 and produced 46 documents which are marked as Ex.P1 to P46 which are the copy of the RTC extracts. On behalf of the defendant, her son Nanjundaswamy examined as DW1 and produced 16 documents which are marked as Ex.D1 to D16. The trial Court on appreciation of the oral and documentary evidence on record, held that the plaintiff has proved that the suit schedule properties are the joint family properties of herself and the defendants. She further proved that in terms of the family arrangement, revenue records stands 8 in their name but actually, there is no partition of the joint family properties. Defendant has failed to prove that there was partition in the family on 10.08.1974 and accordingly they are enjoying their respective shares in the suit schedule property and separate possession. Therefore, the suit of the plaintiff was decreed.
7. Aggrieved by the said judgment and decree of the trial court, the first defendant is in appeal.
8. The learned counsel for the appellant/defendant assailing the impugned judgment and decree contended prior to Ex.D16 i.e., palupatti, all the joint family properties were partitioned between the plaintiff and the defendant. In order to get the mutation entries made, the said partition was reduced into writing as on 10.08.1974. Thereafter, they approached the revenue authorities, who acting on the partition and the palupatti-Ex.D16, effected mutation entries in the name of the plaintiff and defendant in respect of the properties which have fallen to their respective shares. They are in exclusive possession and enjoyment of the said properties 9 as absolute owners. In fact, the defendant has sold the properties which have fallen to her share and thus, the partition has been acted upon. It is later, the present suit for partition is filed contending that the status of the family continues to be a joint family and there is no partition in the family. He submits since the partition has already taken place, the suit for partition is not maintainable and the trial court has erred in coming to the conclusion that the partition is not proved. Ex.D16 is admissible in evidence and it proves that there is family arrangement. The family arrangement is in the form of partition and therefore, the trial Court has committed a serious error in decreeing the suit of the plaintiff.
9. Per contra, the learned counsel appearing for the plaintiff contended that there is no partition in the family. There is only family arrangement. In the terms of the family arrangement, both the parties are cultivating the lands which are near to their place of residence and also mutation entries were made on the basis of actual cultivation. Therefore, when admittedly, the suit 10 properties are all joint and ancestral properties, the plaintiff and defendant have equal share when there is no partition. The trial Court was justified in granting the decree for partition. Therefore, he submits, no case for interference is made out.
10. In the light of the afore said facts and the rival contentions, the point that arise for my consideration is as under:
Whether the parties were enjoying the properties exclusively by virtue of a partition in the family or as a matter of convenience, on the basis of a family arrangement?
11. The facts are not in dispute. All the plaint schedule properties are ancestral properties. It originally belonged to Patel Puttappa. The said Patel Puttappa had two wives viz., Nanjamma and Boramma. The plaintiff is the daughter of Nanjamma who is the first wife. The first defendant is the daughter of the second wife Smt.Boramma. Patel Puttappa died intestate leaving behind his two wives and children through Nanjamma and 11 Boramma. All of them constitute a Hindu Undivided Family. Patel Puttappa had three daughters by name Shivamma, Kamalamma and Sarojamma who are defendants 2, 3 and 4. Plaintiff's first son Shivaswamy is no more. He died leaving behind his wife Nagamma. She is not made a party to the suit. Puttakkaiah, the first defendant has got four daughters and two sons. None of them are made parties to the suit. It is possibly on the assumption that Basamma and Puttakkaiah are representing the two branches. All the suit properties are admittedly ancestral properties. There was no partition during the lifetime of Patel Puttappa. All the aforesaid persons inherited the said property. As is clear from the plaint allegations as well as the allegations in the written statement, the schedule properties are enjoyed by the branch of Basamma and Puttakkaiah exclusively according to the plaintiff under the family arrangement. Accordingly, mutations entries are also made out in their respective names. It is also not in dispute that Nagamma, the wife of Shivaswamy, the eldest son of Basamma sold item No.8 to an extent of three acres and 30 guntas in survey No.11 to 12 one R.N.Chandregowda for a valuable consideration. The sale deed is dated 02.11.1998. Smt.Basamma sold to an extent of one acre and 21 guntas of land in survey No.8 situate in Hosakere village under a registered sale deed dated 01.03.1978 in favour of Appugowda for valuable consideration. Again Basamma sold the land to an extent of one acre and 39 guntas in survey No.107 situate in Rajegowdanahundi in favour of Veeregowda in the year 1996-1997 for valuation consideration as is clear from the sale deeds. All these three sales have taken place subsequent to the so called family arrangement or palupatti as per Ex.D16. It is also not in dispute that the properties which are exclusively enjoyed by them are all mutated in their names. If the family continued to be a joint family, there was no reason for the family members to get mutation entries made in their respective names. It ought to have been in their names jointly. At the same time, if the family continued to be a joint family, no purchaser would have purchased the aforesaid three bits of lands from Basamma or from Nanjamma. Since these properties are sold, it is possible only if the said property 13 has fallen to their share in the partition. It is for this reason we have to look into the recitals in Ex.D16. Ex.D16 is described by the defendants as a partition deed. It is in a stamp paper but not registered. Therefore, the trial Court was of the view that as the partition deed is to be compulsorily registered and since Ex.D16 was not registered, it is inadmissible in evidence. On the contrary, it has recorded a categoric finding that Ex.D16 evidences family arrangement. The plaintiff has not denied Ex.D16. On the contrary, in the plaint, they have specifically pleaded about the family arrangement. The family arrangement referred to by the plaintiff in the plaint refers to only Ex.D16. The trial Court rejected Ex.D16 on the ground it refers to a partition and that partition deed is not registered and therefore, Ex.D16 cannot be acted upon. It is a clear case of misreading Ex.D16. Ex.D16 is not a partition deed. It is a record of the earlier partition. Infact, the document refers to as palupatti. A reading of the document makes it very clear that earlier, the parties to the deed namely Basamma and Puttakkaiah have effected the partition of all the joint family properties and 14 as per that partition, they are already enjoying the properties respectively. However, it is necessary that they have to get the Khathas mutated in relation to those properties. In the presence of Panchayathdars, the said document was written recording what they have done earlier. Therefore, it is clear that the said document is not a partition deed and under the said deed, no partition took place and it is not under the said partition deed for the first time, the properties have fallen to the share of respective parties. Partition had taken place earlier to the date of Ex.D16. As it was not reduced into writing and to enable the parties to get the Khatha mutated in their respective names, they had to produce some document before the revenue authorities. The earlier oral partition under which the properties were divided by metes and bounds was recorded. Therefore, the said document does not require registration. It is admissible in evidence. Once we look into the evidence that is not in dispute, the partition pleaded by defendants stands proved. Further acting on the said document, mutation entries have been carried out. Further, Basamma and Nagamma have sold the 15 properties which has fallen to their in the said partition. It is thereafter, they have filed the present suit for partition and separate possession. Once, the joint family properties are partitioned by metes and bounds, a suit for partition would not lie. Therefore, the Trial Court has committed a serious error by not properly interpreting Ex.D16 and also by holding that Ex.D16 is inadmissible in evidence and that the partition is not proved.
It is strange that Basamma has a son by name Guruswamy and she has got three daughters who are defendants 2 to 4. The first defendant Puttakkaiah has also four daughters and two sons. The first son of Basamma Shivaswamy is dead and his wife Nagamma succeeded him. All the sharers who are entitled to a definite share in the properties are not made parties in the proceedings. The plaintiff in his evidence admits existence of these persons. It is settled principle of law that partition suit should include all the joint family properties and also all persons who are entitled for a share are to be impleaded as parties. Otherwise, such a suit is not 16 maintainable. In the absence of a sharer who has interest in the suit property, no effective decree for partition can be passed. Therefore, the judgment and decree of the Trial Court cannot be sustained. Hence, I pass the following order:
Appeal is allowed.
The judgment and decree of the Trial Court is hereby set aside.
The suit of the plaintiff is dismissed on the ground that all the joint family properties are partitioned and thereafter, there is no joint family nor joint family properties for effecting any partition.
Parties to bear their own costs Sd/-
JUDGE VG