Karnataka High Court
M Laxmangoud vs M Narsangoud on 19 January, 2012
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 19TH DAY OF JANUARY, 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA
Regular First Appeal No.913 OF 2010
BETWEEN:
1. M.Laxmangoud
Aged about 64 years
0cc : Advocate
2. M. Shivakumar Goud,
Aged about 57 years,
0cc: Business
3. M.Basawaraj Goud,
Aged about 53 years,
0cc: Business
4. M.Mallikarjungoud,
Aged about 51 years,
0cc : Business
5. M.Srinivas Goud,
Aged about 48 years,
V
0cc: Business
6. M.Surendra Goud.
Aged about 45 years.
Ccc : Business
All are Sons of Late Erana Gouda,
Resident of Raichur- 584101. . . .Appellants
(By Sri Veeresh B. Patil, Advocate.)
AND:
1. M.Narsangoud
Adopted son of M.Nagappa Goud
Aged about 68 years
0cc : Agril and Business
R/o Jyoti colony station Area,
I.B.Road,
Raichur.
2. Laxmidevi © Shakuntala Dcvi,
W/o M.Narasangoud
Aged about 58 years,
Ccc: Household
3. M.Nagangoud
Sb Narasangoud,
Aged about 38 years,
Ccc : Business
4. M.Naganjali.
D/o M.Narasangoud.
Aged about 36 years,
0cc: Household
5. M.Naveengoud.
3
S/o M.Narasangoud
Aged about 33 \rears,
0cc: Household
All are R/o Jyoti Colony
I.B.Road, Station Area. Raichur.
Dist: Raichur-584101. ...Respondents
(By Sri. V.Sunil Kumar Advocate for C/R. 1-3 & R-5 &
Sri.Ashok S. Kinagi, Advocate for R. 1-3 and R-5)
This RFA is filed U/S 96 of CPC against the Judgment
and Decree dated: 30-3-10 passed in 0.S. No.213/2002 on
the file of the Court of AddL Senior Judge and JMFC-I at
Raichur, dismissing the suit of the plaintiff.
This RFA coming on for orders this day, N.Kumar J.
delivered the following:-
JUDGMENT
This is plaintiffs' appeal challenging the judgment and decree of the trial Court which has dismissed their suit for partition on the ground, there is no joint family and the schedule properties are not joint family properties and also on the ground that the suit for partial partition is not maintainable and the suit is bad for non-joinder of necessary parties.
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2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
One M.Narasappa Goud is the propositus of the family. He had two sons namely, M.Lachamayva goud and M.Nagappagoud Lachamayya had a son by name Earana goud and a daughter by name Earamma. Whereas Nagappa - goud had no issues and therefore he adopted M.Narsangoucl the defendant No.1. His wife is Laxmidevi defendant No.2 and their children are defendants No.3 to 5, two sons and a daughter. Earana goud has got 6 sons who are plaintiffs in this suit. Nagappagoud died on 26-7-1957 and Lachamayya goud had pre deceased him. Earana goud died on 30-7-1980. The subject matter of suit are urban properties which are all situated at station area, Raichur, In fact in the said properties they have put up 42 shops. numbers of which are clearly set out in the schedule annexed to the plaint and they are hereinafter referred to as plaint schedule properties.
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3. The case of the plaintiffs Is both the sons of Narasappa goud I.e. M.Lachamayya goud and M.Nagappa goud were the member of Hindu Joint family. They also carried on their agriculture and business of Excise Jointly. M.Lachamayya goud died long ago. as a member of Joint family. Thereafter his son M.Earana goud continued the business of Excise and agriculture Jointly with M.Nagappagoud. During the life time of M.Lachamayya goud, the said M.Lachamayya goud and his brother M.Nagappa goud were members of joint family. The father of the plaintiffs Earana goud and M.Nagappa goud after the death of Lachamayya goud continued their Joint business. Out of the income from their joint business they have purchased the suit schedule properties bearing Municipal Nos.277, 278. 279, 280, 281 and 282 situated at Station area, Raichur and some agricultural lands situated at• Matmarl village and house bearing Municipal No.244 and 245 at Station area, Raichur. Khatha of these properties were mutated in the Municipal and land records In the name of M.Nagappagoud as he was managing the entire Joint family 6 .
business with the plaintiffs father during his life time M.Nagappagoud had no Issues male or female. He had not intention to adopt Earanagoud as his son, but he could ud.
take him in adoption as he was only son of M.Nagappago in M.Nagappagoud and M.Earana goud had half share each
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the suit schedule properties. M.Nagappagoud died on 26-7 a 1957. The father of the plaintiffs died in the year 1980 as member of joint family. Even after his death the plaintiffs s and defendant No.1 continued the agricultural operation jointly. Late M.Nagappagoud during his life time had executed a Will dated 25-9-1953 in favour of Earana goud and and defendant No.1 who carried on the excise business agriculture jointly as members of joint family. Further he also expressed his intention to continue the excise business and agriculture even after death of Earana goud by his sons I.e. plaintiffs and defendant No.1. PlaIntiffs and defendant No.1 even after the death of Earana goud continued and carried on agriculture jointly as members of joint family as per the desire of Late M.Nagappagoud. Though It was the 7 desire of late M.Nagappagoud to continue the excise business even after his death, defendant No.1 and father of plaintiffs could not continue the business of excise jointly for the reasons best known to them. But however they continued the agriculture jointly. Defendant No.1 expressed his Intention that the front portion of the suit houses ought to be converted Into shops and remaining portions should be converted into a Kalyana Mantap and a lodging. The plaintiffs did not agree for the said proposal because the estimated costs as shown by the defendant No.1 was veiy high which these plaintiffs were not In a position to accept the said proposal. Therefore dispute has arisen between plaintiffs and defendant No.1.
4. Defendant No.1 wIth the consent and permission of plaintiffs taldng advantage of the entry In the Municipal records in his name borrowed heavy amount to complete the estimated project. However the plaintiffs did not agree to this but they demanded their share In the suit houses while effecting partition of the agricultural land. As per the terms V p. .
B 4- na goud of the deed executed by late M.Nagappa goud. Eara of excise and Narasan goud were carrying on the business did not and agriculture Jointly. Before his death Earana goud ur before whisper about the execution of the Wifi In his favo t attack.
anybody, because of his untimely death due to hear s of the Plaintiffs out of frustration approached some elder t but village for partition. The plaintiffs conveyed Panchaya schedule the defendant No.1 refused to partition the said suit hayat at properties. They along with other elders held Panc ndant No.1 Raichur In the month of December 2001 but defe properties.
has refused to partition the suit schedule a goud Recently one S.Krishnamurthy goud son of Narasapp Allampur. District, residing at Chinna Pothalpadu Tq:
hur in the Mahaboobnagar, Andhra Pradesh, came to Raic dated 25-9- month of June 2002 and handed over the Wifi Will Deed 1953 to the plaintiffs saying that he traced the said searching some papers kept by his father while plaintiffs Narasappagoud. On receipt of the said Wifi deed the with the said Krishna Murthy goud approached the V. 9 I-
existence of the Will deed defendant No.1 and disclosed the Nagappagoud In favour of executed by his adoptive father M. pite of It defendant No.1 Earana goud and his sons. Ins intiffs. The plaintiffs could refused to give any share to the pla ll deed as they were not not reveal the existence of the Wi ed to the plaintiffs In the Informed of this and It was reveal properties have now been month June 2002. Some other tate d In the nam e of def end ant s No.2 to 4 behind the back mu s No.2 to 4 being proper of the plaintiff. As such defendant Impleaded as defendants.
and necessary parties have been intiffs bei ng the son s of La te.E arana goud are entitled The pla properties as per the Wifi to half share In the suit schedule fore they filed this suit for deed by way of partition. There of their half share In all the partition and separate possession suit schedule properties.
t defendant has filed
5. After service of summons the firs wr itten sta tem ent . He spe cif ically pleaded there Is no his by the plaintiffs In their joint family concept as pleaded 10 plaint. There was dissolution of jointness at the time of plaintiffs grand father Lachamayva goud. The averments pleaded and set out in the plaint is not completely correct. They have admitted certain averments in the written statement which according to them are correct. M.Narsappa goud was the last Propositus who died long back leaving behind him his two sons namely Lachmayya goud, grandfather of the plaintiffs and Nagappa goud the adoptive father of defendant No.1. The said Lachamayya goud and Nagappa goud have orally partitioned in or about the year 1932. In that partition M.Nagappa goud has not taken any share in the ancestral joint family properties i.e. landed and house properties situated at Matamari village. These defendants adoptive father had left entire landed house property at Matarnari village to the share of his elder brother M.Lachamayya goud. In this manner the defendants adoptive father came out of the joint family by leaving all the joint family properties i.e. landed property including 550 acres and one house property at Matmari village. After severance of 11 in excise joint family the defendant started doing business ness he contract in his individual capacity. Out of excise busi The said has earned lot of money and acquired properties.
t 130 adOptive father purchased out of his self earnings abou property in acres landed properties at Matmari and one house ud had the said village. The said adoptive father M.Nagappago erties also acquired out of his self earnings the suit prop acre 10 guntas situated at station area which is measuring 1 auction at by purchasing the same in a Government public on there the time of Nizam Government. At that time of aucti and was old Nizam building in that 1 acre 10 guntas areas Nagappa the same was sold in public auction to the said structures goud. Thereafter he had put up small temporary goud has in that area of 1 acre 10 guntas. The said Nagappa near Tean also purchased I shop situated at Bresthwar peth Khandil. The defendants adoptive mother later purchased himahal one old house situated at Mangaiwar peth, Shas room is road, Raichur. which is now in dilapidated and one intact. The plaintiffs have not properly described the suit 12 properties by giving its topography and boundaries, The defendant has availed a loan of Rs.28,00,000/- from SBH Bank. station road. Raichur and constructed the suit shops in all 26 in numbers situated at station road in the premises which was purchased by his adoptive father at the Government auction in Nizam Government. In the Western portion there are still temporary structures. Items 1 to 38 are referring to the newly constructed shops situated at station area, Raichur, items 39 to 42 are said to be situated at Somawar peth area Raichur and the Muncipal numbers have not been mentioned.
6. The defendants are the exclusive owners in lawful possession of the suit properties. The plaintiffs have no concern of what so ever in the suit schedule properties. There is no joint family status between the plaintiffs and the defendants. The joint family status was severed long back in the year 1932. That being so the plaintiff cannot maintain the suit for partition. The plaintiffs are not having any share 13 in the suit properties including their father and their grand father. Suit properties are the exclusive properties of the defendants. The house taxes have been paid by the defendant No. 1 and prior to him his adoptive father was paying the same. All the properties are standing in the name of this defendant in the Municipal records. Defendant No. 1 has filed land ceiling declaration in Form No.11 under the provisions of the Karnataka Land Reforms Act, in which he has given the names of his family members and that land ceiling matter came to be decided by holding that there is 7 acres access land which has to be relinquished to the Government. Earana goud had filed his land ceiling declaration before the Land Tribunal Raichur under the provisions of the Land Reforms Act. In that declaration the plaintiffs father Earana goud had shown only the names of his family members. Their ceiling matter appears to be still pending. By looking at the land ceiling declarations it obviously speaks that there was a division long back in the family. After the death of adoptive father Nagappa goud there 14 No.43/2 of was a Succession Certificate Proceedings in S.C. by this 1958 on the file of the District Judge, Raichur filed mamma for defendant No.1 through next friend mother Lach . That recovery of the amount of the deceased in the bank ession Succession Case came to be allowed by granting Succ tive father Certificate in the name of this defendant. The adop him this Nagappa goud died in the year 1957 leaving behind mamma, defendant No.1 as adoptive son and his wife Lach s namely The said Nagappa goud was having in all three wive Nagamma, Yenkamma and Lachmamma. The senior wives Nagappa goud. The Nagamma and Yenkamma predeceased Defendant said Lachmamma also died in the year 1983-84.
performing No.1 was duly adopted by said Nagappa goud by and taking all the religious ceremonies including giving The said Nagappagoud also executed a ceremonies.
t has tried registered Adoption Deed. Thereafter the defendan to traverse the allegations in the plaint. Though he admits red that the the relationship set out in the plaint he has aver 3 sisters plaintiffs have suppressed that they are having 15 namely. Vij ayamma. Vasantamma and Ranamma. The plaintiffs grand father was having two wives. Senior wife Yallamma had no issues and she is no more. The junior wife Lachrnamma is no more and this Lachmamma had a son by name Earana goud. The father of plaintiffs and daughter Earamma whose whereabouts are not known. One Subhadramma the daughter of said Earamma married to plaintiff No.3 namely, M.Basavraj. Till the date of partition the family was not doing any excise contract. It is only after separation the adoptive father Nagappa goud started doing excise business. The plaintiffs and their father and their grandfather have nothing to do with the excise business of adoptive father of this defendant and earnings from the business, All the suit properties were the self acquired properties of Nagappa goud the adoptive father and the same was acquired by the defendants as co-parcerners and also on succession. The plaintiffs, their father and their grandfath er have no rights of whatsoever in and over the suit propertie s.
The plaintiffs and their father and their grandfather neve r 16 resided with the defendants or the adoptive father Nagappagoud. The plaintiffs father was residing in a rented house during his life time at Raichur and the owner of the house filed a rent control HRC Petition No.29 of 1976 on the file of Munciff Court Raichur which came to be allowed. The contents of voters list clearly makes out that there was no jointness in the family since long time.
The Municipal numbers stated in the plaint schedule proper ty at item No. I to 38 refer to the newly constructed shops and other old structures situated within lacre 10 guntas area purchased by the adoptive father of defendant No.1 in the Government auction. The allegation that late M.Nagappa goud had executed a Will dated 25-9- 1953 in favour of Earana goud and that as per the terms of the said Will Earan goud and defendant No, 1 could carry on the excise business and agriculture jointly as members of the joint fami ly and that the said Nagappagoud also expressed his intentio n to continue the excise business and agriculture even after the death of Earangoud by the plaintiffs and the defend ant No.1 and that 17 '4 '.4.
a plaintiffs and defendant No.1 after the death of Earana goud continued and carried on the agriculture as members of the Joint family as per the desire of late Nagappa goud are all false. Nagappa goud has not executed any Wifimuchiess the Wifi dated 25-9-1953 and he has never expressed any desire or intention either orally or In writing during his life time. The Wifi asserted by the plaintiffs is false, unfounded, spurious, got up and forged document. It was not executed by the Nagappagoud. Even otherwise it is not a Wifi in law as per the contents of the document. It was not executed in favour of any one. That being so that document is not admissible in evidence. Even otherwise this alleged Wifi has not seen the light of the day tIll it is produced in the above suit. It has not come to light for the last 50 years. This circumstance speaks volumes about the falsity of the Will. He has denied all other allegations in the plaint parawise and sought for dismissal of the suit Thereafter the defendants 2 to 4 and 5 ified a memo adopting the written statement of defendant No.1.
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7. Thereafter the plaintiff has ified a rejoinder under Order 7 Rule 9 of CPC. They state that the sister of the plaintiffs father is one Earamma whose whereabouts is not known since more than 30 years. esides the daughters of Earanna goud were already married before the death of Eranna Qoud. As such neither they are necessary nor proper parties to the suit. However, If any, they are entitled to appear during the final decree proceedings. The non Inclusion of other agricultural lands and property is also not fatal to the suit because the same can be Included at the time of final decree proceedings. The allegation that the joint family came to an end, the suit Is barred by limitation and that there was a partition in the year 1932 between the defendant No.1 and his brother are all false. Court fee paid is sufficient. Therefore he sought for a decree in terms of the prayer made in the plaint.
8. On the aforesaid pleadings, the trial Court has framed the following issues:
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1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties of plaintiffs and the defendants?
2. Whether the defendants prove that the suit shops and Maligies were the self acquired Malagies of late Nagappagouda?
3. Whether the plaintiffs prove that they are in joint possession of the suit schedule properties with defendants?
4. Whether the plaintiffs are entitled for their share in the suit properties? If so, what is their share?
5. To what order or decree?
Addi. Issues framed on 5-8-2009:
1. Whether the plaintiffs prove that late. M.Nagappa gouda has executed the Will Deed, dated 25-9-
1953 in favour of Earana goud?
2. Whether the defendants prove that there was an oral partition between M.Lachmavva goud and M.Nagappa Goud in the year 1932?
Addi. Issues framed on 3-2-20 10:
1. Whether the suit is bad for non-joinder of necessary parties?
2. Whether the suit is bad for partial partition? 20 1
9. The plaintiffs In order to substantiate their claim examined the first plaintiff Laxman goud as PW-1 and they also examined two witnesses - M.Narasan goud and Krlshnamurthy as PWs-2 and 3. They produced 9 docu ments which were marked as Ex.P- 1 to P44. The first defe ndant Narsan goud was examined as DW-1 and he has produced 23 documents which were marked as Ex.D-1 to D-74.
10. The Trial Court on appreciation of the oral and documentary evidence on record held that the plaintiffs have failed to prove that the suit schedule properties are the Joint family properties of the plaintiffs and the defendan ts.
Defendants have dearly established that the suit sche dule properties were the self-acquired properties of late Naga ppa goud. Plaintiffs have failed to prove that they are In Joint possession of the suit schedule properties with the defendants. Plaintiffs have no right over the suit schedule property and therefore they are not entitled to any share therein. The plaintiffs have failed to establish that 21 I. M.Nagappa goud has executed a Will Deed dated 25-9-1953 in favour of Earana goud. The defendants have established the oral partition between M.Laxman goud and Nagappa goud in the year 1932. As the plaintiffs have not Impleaded their sisters and suit is bad for non-joinder of necessary parties. As admittedly 400 acres of land which was standing In the name of plaintiffs which is also according to them is an ancestral property is not included in the suit, the suit for partial partition is not maintainable. For the aforesaid reason the Trial Court dismissed the suit of the plaintiff.
11. AggrIeved by the said judgment and decree of the ThaI Court the plaintiffs have preferred this appeal.
12. The learned Counsel for the appellants assailing impugned the judgment and decree of the Trial Court contended the partition of 1932 pleaded by the defendant is not established. It is not evidenced by any document. It was 22 not even reduced to writing. Therefore when once the relationship between the parties is admitted the joint family status continues. The joint family was carrying on excise business. It is not in dispute that the properties which are now standing in the name of the first defendant were all acquired out of the income derived from the excise business, Therefore when properties are acquired out of joint family business, out of joint family nucleus they partake the character of joint family. There is no partition. There is no dispute also with reference to agricultural lands. The dispute is only with reference to schedule property in which the defendant had refused to give a share to the plaintiffs and therefore the Trial Court committed a serious error in not decreeing the suit of the plaintiffs. Even if all the properties belong to the joint family as the landed properties and other properties are not included in the suit it is not fatal. These properties can be included in the final decree proceedings and partition can be ordered as there is no dispute. Similarly in not impleading the sisters is also not fatal to the case because 23 •1 they would be impleaded in the final decree proceedings and once the plaintiff share is determined and given to them they would get their respective shares from the plain tiffs.
Unfortunately the Trial Court did not properly consider these aspects and committed a serious error in dismissing the suit.
Therefore he submits a case for interference is made out.
13. Per contra the learned Counsel appearing for the defendants submitted in the year 1932 the first defe ndant's father at a partition gave away all the agricultural lands to his elder brother, he severed from the joint family and then he started his excise business. It Is his exclusive business.
It is not joint family business and from the money derived from the said business he has purchased the suit sche dule properties of about 131 acres of agricultural land in the very same village. In fact the first defendant borrowed Rs.28,00,000/- and demolished the old structure and has put up 38 shops which are let out to various tenants. When once the plaintiff admit the family owned 400 acres of land when 24 admittedly they have not included the same in the plaint schedule on their own showing a suit for partial partition is not maintainable. Similarly defendants contend the suit is not maintainable for nonjoinder of his sisters who are necessaiy parties. Till today they are not impleaded. Therefore the Trial Court was justified in dismissing the suit of the plaintiffs on the aforesaid grounds. Therefore he submits no case for interference is made out.
14. In the light of the aforesaid facts and the rival contentions the points that arise for our consideration in the appeal are as under:
a. Whether the finding of the Trial Court that the plaintiffs have failed to establish the existence of joint family and joint family properties calls for any interference? b. Whether the plaintiffs have proved the Will dated 259l953 which is propounded by them?25
h V c. Whether the excise business carried on is joint family business or the exclusive business of the defendant?
d. Whether the finding of the Trail Court that the suit for the partition for non-joinder of necessary parties as well as non inclusion of all the joint family properties is not maintainable calls for any interference? Point No.1 : It is the specific case of the plaintiffs that there is no partition in the family. The family continues to be joint. One M.Narasappagoud is the propositus. He had 2 sons by name M,Lachamayya goud and M.Nagappa goud who constituted a Hindu undivided family and coparceners. There was no partition between them. Even there was no partition between the Lachamavya goud and Nagappa goud. After the death of Lachamayya goud, Nagappa goud became the karta of the joint family. He along with Earan goud was carrying on excise business and cultivating agricultural lands. After the death of Lachamayya goud the plaintiffs are in joint 26 possession of all the suit schedule properties and are carrying on excise business jointly and cultivating all the joint family properties. In respect of agricultural lands there is no dispute. It is only in respect of schedule properties. The plaintiffs were not inclined to raise huge funds for the construction which was proposed by the first defendant. In spite of their opposition he has borrowed nearly 28,00,000/- from the banks. It is In that context suit came to be ified. It is the specific case of the defendants during the life time of Lacbmayya goud in the year 1932 Nagappa goud gave up his rights in respect of all the joint family properties and gave all agricultural lands to his elder brother Lachamayya goud and walked out of the house. Thereafter he started his excise business and from the income derived from the excise business he purchased 130 acres of agricultural land in the same village and also acquired the suit schedule properties. After coming in to force of the Land Reforms Act Nagappa goud filed a declaration showing the first defendant his wife and children as his family members. 7 acres of agricultural 27 land was shown to he in access which he has surrendered to the Government and therefore at an undisputed point of time that declaration shows that Nagappa goud was not a member of the joint family and he and his Sons constituted a separate family. Similarly Earan goud son of Lachamavya goud also filed a declaration in Form No. 1 1 under the provisions of Karnataka Land Reforms Act showing himself and his sons as members of the joint family. He has not mentioned the first defendant or his father as members of his family. He has not included in the declaration that 130 acres of land held by the first defendant. It is confined only to 400 acres of land. This undisputed document, at an undisputed point of time, where both the applicants have categorically stated in writing who are their family members and what are the properties. held by them. This clearly demonstrate that there was no jointness between them. There was no undivided joint family and there was no undivided joint family properties. Similarly after the death of Nagappa goud the first defendant file an application for grant of Succession Certificate to enable him 28 A to claim the amounts of Nagappa goud which was In bank deposit and also claim monies which are due to his estate. The Court before granting Succession Certificate directed publication of notice In paper and gazette and nobody filed objections. The plaintiffs did not object to the grant of Succession Certificate In favour of the first defendant. On the basis of Succession Certificate granted he has recovered all the monies due to the estate of Nagappa goud. This is yet another piece of evidence which at an undisputed point of time i.e. in 1957 which shows that Nagappa goud and his step-brother Lachamayya goud did not constitute a joint family. They were living separately. It is on the basis of this evidence on record the Trial court has come to a finding that there is no jolntness between plaintiffs and defendants and they are not members of the joint family and the plaint schedule properties are not the joint family properties.
Both the parties have produced the ration cards which are standing In their respective names. It also discloses their 29 units are treated as separate units. If it was a joint family property there cannot he two ration cards and names of all the persons should find the place in one card. This is also vet another piece of evidence that there is no joint family in existence.
Point No.2:-
The plaintiffs claim that Nagappa goud had executed a Will dated 25-9-1953 expressing his desire that his son first defendant should carry on his excise business jointly and cultivate land jointly and in the event of Earana goud's death the plaintiffs should carry on the business jointly with first defendant and continue to cultivate the land belonging to the family. Will is a document under which a testator bequeaths his property in favour of legatee. Unless a property is bequeathed it cannot be construed as a Will. The mere expression of a desire how the properties have to be shared and enjoyed will not amount to a Will. Even otherwise the Will is not registered. It has not seen the light of the day for a nearly 50 years. It was found in possession of PW-3. The attesting witness, PW-3 Is none other than the brother-In- law of the first plaintiff If the brother-in-law of the first plaintiff had possessed this Will in the year 1953, no reasons are forthcoming why he did not inform the first plaintiff about the said Wlil. If the evidence of PW-3 has to be believed, after he traced the Wifi in the year 2002 he kept quite because as it was in Urdu. Thereafter he went to a person who knows Urdu and got the same translated and handed to the plaintiff I.e. after filing of the suit. Curiously in the plaint there is a reference to the Wifi. These circumstances clearly demonstrate this Will is a fabricated document. It is not a Will executed by a M.Nagappa goud and rightly the Trial court has dismissed the suit.
PoInt No.3: It is not in dispute all the documents of the excise business are produced and marked. It is in the name of first defendant and prior to him in the name of his father Nagappa goud. It Is the case of the defendant that Nagappa 31 goud after partition in the year 1932, he gave up all his rights in the land in favour of his elder brother and he started his business separately. Therefore it is his independent business. It is not the case of the plaintiffs this was the business started by M.Narsappa goud. If it is not a business started by Narsappagoud and if it is a business started by Nagappa goud unless the plaintiffs show how Lachamayya goud and his son Earan goud were also involved in this business it cannot construed as a joint family business of the plaintiff and the defendants. The evidence on record shows the first defendant by virtue of the fact that he was a business man approached a nationalized bank and borrowed Rs.28,00,000/-. The bank granted him the loan only because he was in the excise business and having good income and he was an income tax assessee. If really income from the excise was a joint family business and if the plaintiffs had received any income from the year 1957 till the date of the suit there is nothing to show what is the amount they have received. Whether they have filed income tax returns or they have paid 32 a Income tax. Absolutely there is no evidence on this aspect. It Is in these circumstances the Trial court rightly held the excise business carried on by the first defendant and earlier by his adoptive father Nagappagoud is the exclusive business of Nagappa goud which was never a joint faintly business and therefore the plaintiffs have no right on the said properties. If that Is so the scheduled properties also exclusively belonged to the first defendant having Inherited the same from his adoptive father Nagappa goud. Therefore neither the excise business nor the scheduled property Is a joInt family property but ft Is the exclusive property of Nagappa gouda and after his death the first defendant as an adoptive son. The Trial court was justified In recording a finding to that effect as ft Is based on admitted evidence on record.
Point No.4:-
The case of the plaintiffs Is there exists a joint family and the joint family owns agricultural lands apart from the scheduled properties. In the rejoinder It Is categorically 33 stated non inclusion of agricultural lands in the suit for partition is not fatal. Plaintiff has categorically stated he owns 400 acres of agricultural land and that the said land is not yet partitioned. If the evidence of defendant is to be believed out of the excise business another 130 acres of land has been acquired which is also not included in the suit. Law on the point is very well settled, A suit for partition should include all the properties belonging to the joint family. If for any reason any property is not included, the plaint should disclose why it is not included. Otherwise a suit for partial partition of the joint family properties is not sustainable and on that ground the Trial court was justified in dismissing the suit of the plaintiffs.
The plaintiffs have got three sisters. They are not made as parties. After 1956 the daughters have an equal share in the father's property. Therefore in a suit for partition all the persons who are entitled to a share are necessary parties. If they are not made parties there cannot be an effective decree 34 for partition. Daughters are necessary parties and not proper parties and therefore question of impleading them at the stage of final decree proceedings is impermissible. Therefore the trial court was justified in holding the suit for partition is also bad for nonjoinder of necessary parties.
For the aforesaid reasons the Trial court on careful consideration of the entire material evidence on record has carefully recorded a finding which is just and legal, which is based on legal evidence and there is no case for interference. Hence, no merits. Dismissed.
Sd! JUDGE Sd/s JUDGE Mgn/