Karnataka High Court
Smt N Varalakshmi W/O V Nehru Reddy vs Sri N Mahendra S/O Late B Nanjappa on 14 July, 2017
RFA NO.2331/2007(PAR)
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
REGULAR FIRST APPEAL NO.2331/2007 (PAR)
BETWEEN:
1. Smt.N.Varalakshmi,
W/o V.Nehru Reddy @
V.Narayana, Aged about 53 years,
R/at No.22, Doddakatappa Road,
Ulsoor, Bangalore-560 008. ....Appellant
(By Sri.Janardhan.G. Advocate)
AND:
Sri.N.Mahendra,
S/o Late B.Nanjappa,
Since deceased by his LRS.
1(a) Miss.M.Mamatha,
D/o Late N.Mahendra,
Aged about 25 years.
1(b) Mr.M.Ravindra,
S/o Late N.Mahendra,
Aged about 23 years,
Both are R/at No.9,
Hanumaiah Reddy Road,
Ulsoor, Bangalore-560 008.
RFA NO.2331/2007(PAR)
2
2. Sri.Suresh,
S/o Late B.Nanjappa,
Aged about 47 years,
R/at No.855, 11th Main, 3rd Cross,
II Stage, Indiranagar,
Bangalore-560 008.
3. Smt.N.Savitha,
W/o Late C.P.Chandrasekara Reddy,
Aged about 49 years,
R/at No.3/1,
Subbaiah Reddy Road, Ulsoor,
Bangalore-560 008. ....Respondents
(By Sri.A.Krishna Bhat, Adv., for R1 (A & B), Sri.G.V.Balu
and Sri.K.Mohan Adv's., for R2, Sri.H.R.Chandrashekar
Adv., for R3))
This RFA is filed under section 96 of Civil Procedure Code,
against the Judgment and Decree dt:31.07.2007 passed in
O.S.No.10024/1998 on the file of the XXVIII Addl. City Civil
Judge, Mayohall Unit, Bangalore, partly decreeing the suit for
partition.
This Appeal having been heard and reserved, coming on
for Pronouncement this day, the Court delivered the following:
JUDGMENT
This plaintiff's appeal arises out of the judgment and decree in O.S.No.10024/1998 passed by the XXVIII Addl. City Civil Judge, Bangalore. By the impugned judgment, the trial Court has partly decreed the suit of the plaintiff for partition and separate possession of her 1/12th share in RFA NO.2331/2007(PAR) 3 the suit schedule properties as against her claim for equal ¼ share.
2. Defendant nos.1 and 2 are the brothers and defendant no.3 is the sister of the plaintiff. The subject matter of the suit are lands bearing Sy.No.57/7B1 measuring 5 guntas and Sy.No.56/1 measuring 26 guntas situated at Hongasandra Village limits, Bangalore South Taluk.
3. The case of the plaintiff in brief is as follows:
That the suit schedule properties are the self- acquired properties of her father B.Nanjappa. He died on 08.07.1997. Nanjappa executed will dated 04.06.1997 bequeathing the suit properties to her and the defendants in equal shares. Though the said documents are styled as "settlement deeds" but in substance, they are the wills.
During the life time of Nanjappa, 1st defendant filed O.S.No.363/1997 against Nanjappa and the 2nd defendant for partition and separate possession of the suit properties RFA NO.2331/2007(PAR) 4 and two other lands. After the death of her father, defendants 1 and 2 instead of bringing the daughters on record as his heirs, fraudulently compromised the suit depriving the daughters of their share. Therefore, the compromise decree in O.S.No.363/1997 does not bind her. If at all the will is not held proved, she be awarded ¼ share in the suit properties.
4. Defendants 1 and 2 filed the written statement. Their defence is as follows:
i) It is denied that the suit properties are the self-
acquired properties of their father Nanjappa. They deny the execution of the will. The suit properties are their ancestral properties. Therefore, Nanjappa was not competent to execute the will. The daughters are not entitled to the share because their marriages were performed spending huge amount. Nanjappa has alienated certain properties which are not included in the suit. Therefore, the suit is bad for non-joinder of those properties. The Court lacks territorial jurisdiction.
RFA NO.2331/2007(PAR) 5
5. 2nd defendant contended that the father has executed a will on 04.06.1997 and he is agreeable for partition as per the said will. 3rd defendant filed written statement supporting the case of the plaintiff.
6. On the basis of the above pleadings, the trial Court framed the following issues and additional issues:
ISSUES:
"1. Whether the plaintiff proves that suit schedule Properties are self acquired property of her father B.Nanjappa?
2. Whether the plaintiff proves that Nanjappa has settled suit schedule properties equality on plaintiff and defendants under Will dated 04.06.1997?
3. Whether plaintiff is entitled to the share in suit properties? If so, what is the extent of her share and in which properties?
4. Whether defendants prove that suit properties are ancestral properties?
5. Whether the suit of plaintiff is not maintainable for non inclusion of Sy.No.56/16 and Sy.No.44/1 of Kodli village?
6. Whether the court has no territorial jurisdiction to try the present suit?
RFA NO.2331/2007(PAR) 6
7. What order or decree?"
ADDITIONAL ISSUES:
"1. Whether plaintiff proves that the first and second defendant played fraud and obtained a compromise decree in OS.No.363/97 and the same is not binding on the plaintiff?
2. Whether the defendants prove that the relief of declaration sought by plaintiff is barred by time?"
7. In support of the case of the plaintiff, parties adduced evidence. On plaintiff's side, PWs 1 to 3 are examined and Ex.P.1 to P.14 are marked. On defendants side, DWs 1 to 2 are examined and Exs.D1 and D2 are marked.
8. The trial Court after hearing the parties, partly decreed the suit holding that:
(1) Plaintiff's father has executed - Exs.5 and 6 and though they are termed as settlement deed, they are the wills of Nanjappa;
RFA NO.2331/2007(PAR) 7 (2) The suit properties are the ancestral properties of Nanjappa. Therefore, he was not competent to execute the will in respect of those properties;
(3) The decree in O.S.363/1997 is collusive and that does not bind the plaintiff;
(4) By operation of Section 6 of the Hindu Succession Act, plaintiff is entitled to equal share in 1/3 share of Nanjappa which comes to 1/12th share in the suit schedule properties;
(5) The Court has territorial jurisdiction; (6) The properties alienated by Nanjappa need not be included in the case since plaintiff has not sought any share in them and the defendants have not challenged those alienations.
9. Sri Janardhan.G, learned counsel for the appellant in his argument seeks to assail the impugned judgment and decree to the extent of not granting full ¼ share or the share as per the Will cum settlement deed Exs. P.5 and P.6 on the following grounds:
RFA NO.2331/2007(PAR) 8
i) Though the trial Court holds that the execution of Exs.P.5 and P6 - will cum settlement deeds are proved, had rejects the claim of the plaintiff on the ground that the suit properties are the ancestral properties of Nanjappa and therefore, he is not competent to execute the will cum settlement deeds and bequeath them;
ii) Admittedly the properties in question were purchased by Nanjundappa, the elder brother of Nanjappa and they were later partitioned between the brothers on 19.05.1975;
iii) Under Hindu Law, though the presumption is in favour of existence of joint family, there is no presumption that the properties acquired by one of the members of the joint family is the joint family property;
iv) Section 6 of the Hindu Succession Act applies only to the co-parcenary properties. The property acquired by an unobstructed heritage does not become the co-parcenary property.
RFA NO.2331/2007(PAR) 9
v) To claim co-parcenary property, either the property should be ancestral property or separate property of the Co-parcenar thrown into common co-parcenary stock;
vi) The conduct of Nanjundappa selling his other properties in partition deed and defendant not challenging those alienations show that the properties were self acquired properties of Nanjappa and his brother, that too, when they were purchased by Nanjappa;
vii) The initial burden of proving the fact that the properties were the ancestral properties lies upon the defendants. It was for the defendants to prove that Nanjappa and Nanjundappa had acquired those properties through their ancestors or to prove that there were some ancestral joint family properties which were yielding nucleus to purchase the properties in the name of Nanjundappa from out of such income;
viii) The trial Court committed error in casting burden on the plaintiff to prove that the suit properties are self RFA NO.2331/2007(PAR) 10 acquired properties of the plaintiff instead of casting burden on defendants No.1 and 2 to establish their claim regarding nature of the properties;
ix) The trial Court committed an error in applying Section 8 of the Hindu Succession Act to the case. In support of his contention he relies upon the following judgments of the Apex Court:
(1) Commissioner of wealth Tax, Kanpur and Others
-vs- Chander Sen and Others; (1986) 3 SCC 567:
(2) Yudhishter -vs- Ashok Kumar, AIR 1987 SC 558.
10. As against that Sri A Krishna Bhat, learned counsel for respondents 1 and 2 in his arguments seek to support the impugned judgment on the following grounds:
i) Father of the parties and his elder brother Nanjundappa constituted the joint Hindu family and therefore the properties were purchased in the name of Nanjundappa, the elder of brother of Nanjappa;
RFA NO.2331/2007(PAR) 11
(ii) Since properties were ancestral joint family properties, after the death of Basappa, Nanjundappa partitioned the properties and gave the share to Nanjappa. Otherwise there was no reason for Nanjundappa to part with the properties.
iii) PW.1 - the daughter is ignorant of the family affairs and her evidence did not help the plaintiff to prove her case.
iv) The plaintiff claims the properties through partition deed - Ex.D1 between her father and uncle and the said document itself says the properties partitioned therein are the joint family properties. The properties were purchased by joint family funds and treated as HUF properties. The execution of the will and competence of the testator to execute the Will in respect of the joint family properties are disputed.
11. In support of his arguments he relies upon the following Judgments.
RFA NO.2331/2007(PAR) 12
1) Patel Chandrappa -vs- Hanumanthapp, ILR 1989 Karnataka;
2) Mulla Hindu Law (17th Edition) Section 216 page 3 to 6;
12. Having regard to the rival contentions, the question that arises for consideration of this Court is:
"Whether the finding of the trial Court that the suit schedule properties are the joint family properties of defendants No.1 and 2 and their father Nanjappa is sustainable?"
13. Some of the undisputed facts area as follows:
- that plaintiff and defendants are the children of the deceased Nanjappa. Nanjundappa, the elder brother of Nanjappa purchased plaint 'B' schedule property and survey No.56/16 under the sale deeds as at Exs.P1 and P2 on 20.11.1958 and 25.05.1961. Nanjundappa and Nanjappa partitioned the said properties and some other properties under the registered partition deed dated RFA NO.2331/2007(PAR) 13 16.05.1975. In that partition, the suit schedule properties have fallen to the share of Nanjappa. Nanjappa has alienated some of the properties allotted to his share under partition deed dated 16.05.1975. Defendant No.1 filed O.S.No.3636/1997 against Nanjappa and the present 2nd defendant claiming that the suit properties are the ancestral properties and that he has share in that.
Nanjappa died on 08.07.1997. On the death of Nanjappa, defendant No.1 did not bring plaintiff and defendant No.3 the daughters as legal representatives in O.S. No.363/1997. Instead of that, himself and the present defendant No.2 alone compromised the suit. The suit was decreed in terms of compromise on 29.07.1998. Ex.P9 is the copy of the compromise deed and Ex.P8 is the order sheet in the said suit. In the said compromise petition, defendants 1 and 2 claimed that they are the legal representatives of deceased Nanjappa and he died intestate.
RFA NO.2331/2007(PAR) 14
14. After the plaintiff filing the present suit against present defendants No.1 and 2 filed O.S. Nos. 2527/2000 against the present plaintiff, defendant No.3 -N Savitha and their own children claiming that defendants of that suit have set up the will dated 04.06.1997 and the said will is an outcome of fraud, mis-representation and un-due influence. Therefore null and void. The said suit came to be dismissed for non-prosecution on 14.8.2007.
15. The trial Court has held that the execution of Exs.P5 and P.6 by Nanjappa is proved. It is further held though Exs.P.5 and P.6 are drafted as settlement deeds, in substance they are the wills of Nanjappa and under the said will Nanjappa has bequeathed equal share to plaintiff and defendants. The trial Court held that suit schedule properties are the ancestral properties, therefore Nanjappa had no right to bequeath those properties. Therefore, granted share to the plaintiff only in his share applying Section 6 of Hindu Succession Act. Defendants have not filed any appeals or cross objections challenging those RFA NO.2331/2007(PAR) 15 findings or awarding share to the plaintiff. Therefore those findings have attained finality.
16. Sri A. Krishna Bhat, learned counsel for the contesting respondent contends that without filing cross- objections, those findings can be questioned by the respondents under Order XLI Rule 33 C.P.C. Learned counsel further states that the Appellate Court has power to pass any decree which ought to have been passed as required in the case, not withstanding that the other party has not filed any appeal or cross objections.
17. The trial Court after appreciation of the oral and documentary evidence has held that the plaintiff has proved Exs.P.5 and P.6 by examining attesting witnesses and scribe.
18. The oral and documentary evidence as well as the statement of defendants themselves in Ex.P11 the plaint in O.S.No.2527/2000 show that defendants No.1 and 2 are residing separately from Nanjappa and they RFA NO.2331/2007(PAR) 16 contend that they had cordial relationship with Nanjappa. Taking into consideration all these aspects, the trial Court has held that Ex.P.5 and Ex.P.6 are proved. Therefore, those findings do not warrant any interference by this Court.
19. The trial Court granted declaration that the compromise decree in O.S. No.363/1997 dated 29.07.1998 does not bind the plaintiff of her share. Even those findings have gone un-assailed. Therefore, there is no merit in the contention that invoking Order XLI Rule 33 C.P.C. the defendants 1 and 2 can assail those findings.
20. The reading of the judgment of Patel Chandrappa's case referred to supra shows that the matter involved in that case was a suit for partition. Therefore it was held that irrespective of the un-married daughter not filing any appeal against the dismissal of the suit for partition and separate possession, Court can grant relief to them invoking Order XLI Rule 33 of C.P.C.
RFA NO.2331/2007(PAR) 17 Therefore, if the Courts comes to the conclusion that the appellant and other heirs of Nanjappa are entitled to share in his properties, without filing a separate appeal or cross objections, they can claim their share invoking Order XLI Rule 33 C.P.C. Therefore the said decision is not applicable to the facts of this case.
21. Then the question is that:
"Whether the trial Court is justified in invoking Section 6 of Hindu Succession Act to award 1/12 share to the plaintiff?"
22. Section 6 of Hindu Succession Act applies to the co-parcenary properties. Section 220 of Mulla's Hindu Law Volume I at page no.324 classifies the Joint Hindu Property as follows:
220. Classification of property - Property, according to the Hindu law, may be divided into two classes, namely, (1) joint family property, and (2) separate property.
RFA NO.2331/2007(PAR) 18 Joint family property may be divided, according to the source from which it comes, into-
(1) ancestral property(223-225); and (2) separate property of coparceners thrown into the common coparcenary stock (227).
Property jointly acquired by the members of a joint family with the aid of ancestral property is joint family property. Property jointly acquired by the members of a joint family without the aid of ancestral property may or may not be joint family property; whether it is so or not is a question of fact in each case (228). The term 'joint family property' is synonym with 'coparcenary property'. 'Separate' property includes 'self-acquired' property (222,
231).
223. Ancestral property - (1) Property inherited from paternal ancestor.- All property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest in it by birth.
RFA NO.2331/2007(PAR) 19
23. In Patel Chandrappa's case referred to supra relied upon by respondents counsel himself the coparcenary property is explained as follows:
"(B) HINDU LAW - COPARCENARY PROPERTY-
features.
Held:
Under the Mithakshara Law, the coparcenary property may consist of ancestral property or of joint acquisitions or of property thrown into the common stock and accretions to such property. In a given joint family coparcenary property may consist of one or the other or all the aforesaid types of properties. The coparcenary property belongs to all the coparceners. No coparcener can claim that it is his exclusive property. Unity of ownership and unity of possession are the essence of a coparcernary property under the Mithakshara Law. So long as there is unity of possession and unity of ownership, no coparcener can say that a particular property belongs to him; he can say so only after a partition. (Para-14)"
24. The plaintiff claims that her father and senior uncle Nanjundappa jointly acquired the suit properties which is proved by the sale deeds and partition deed.
RFA NO.2331/2007(PAR) 20 Nanjappa did not deny at any point that they were the joint acquisitions of himself and Nanjundappa. Mere fact of Nanjundappa and Nanjappa partitioning those properties, do not confer them the status of the ancestral properties or the joint family properties.
25. Section 222 of Hindu Law by Mulla, Vol. 1, 17th Edition at page no.330 explains the separate properties or self acquired properties as follows:
"222. Incidents of separate or self-acquired property- A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He may sell it, or he may make a gift of it, or bequeath it by will, to any person he likes. It is not liable to partition, and, on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners" (Emphasis supplied).
RFA NO.2331/2007(PAR) 21
26. Sections 101 and 102 of Indian Evidence Act casts the initial burden of proving that the suit schedule properties are the self acquired properties of Nanjundappa and Nanjappa on the plaintiff. On their discharging the said burden the burden shifts to defendants 1 and 2 to prove that they are ancestral properties or coparcernery properties.
27. The plaintiffs discharged their burden by producing the will and the sale deeds by which the suit schedule properties were acquired by Nanjundappa. There is admission of the defendants themselves that they were divided by Nanjundappa and Nanjappa. Therefore burden shifts upon the defendants to prove that there were some ancestral properties inherited by Nanjundappa and Nanjappa and those properties generated the income to form joint family nucleus.
28. The suit schedule properties are purchased in the name of Nanjundappa. The defendants have not RFA NO.2331/2007(PAR) 22 adduced any evidence to show that there was such nucleus of joint family which was available to Nanjundappa and out of that suit properties were acquired.
29. The defendants themselves admitted that Nanjappa during his life time alienated some of the properties acquired under a partition deed dated 19.05.1975 between him and Nanjundappa. They have not challenged those alienations. That circumstance also goes to show that said properties are not the joint family properties but his separate/self acquired properties. Such probability becomes more stronger since the properties are acquired through an obstructed heritage.
30. The trial court without taking into consideration all the aforesaid aspects, held that the defendants have proved that the suit schedule properties are coparcenary properties and applied section 6 which is erroneous.
31. As already pointed out the trial Court has set- aside the decree passed in O.S.No.363/1997 in favour of RFA NO.2331/2007(PAR) 23 defendants No.1 and 2 to the effect that the suit schedule properties are the ancestral properties of Nanjappa and they alone have share in those properties. The defendants No.1 and 2 have not challenged those finding thereby they have lost the right to contend that suit schedule properties are the coparcenary properties and therefore plaintiff is not entitled to equal share in those properties.
32. Having regard to the aforesaid facts and circumstances, suffice it to say that the judgments relied upon by the counsel for the respondent are not applicable to the facts of the case.
33. For the aforesaid the finding of the trial Court that suit schedule properties are the ancestral properties is liable to be set aside and consequently judgment and decree are to modified. Therefore appeal is allowed. The impugned judgment and decree of the trial Court is modified as follows:
RFA NO.2331/2007(PAR) 24 It is declared that plaintiff and 3rd defendant each are entitled to 1/4th share in suit schedule 'A and 'B' properties in terms of Exs.P5 and P.6 The trial Court's decree with regard to declaration of compromise in O.S. No.363/1997 dated 29.07.1998 is maintained. Draw decree accordingly. No order as to costs.
Sd/-
JUDGE Brn/HR