Karnataka High Court
Marthu S/O Narayan Prabhu vs Ufm Manjunath S/O Marthu Prabhu on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 RFA No. 100041 OF 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100041 OF 2015
BETWEEN:
SHRI. MARTHU S/O. NARAYAN PRABHU,
AGE: 39 YEARS, OCC: PVT EMPLOYEE,
R/O: JVSC COMPOUND, VIDYANAGAR,
SAMREEN
AYUB TORANGALU, DIST: BALLARI- 583275.
DESHNUR
...APPELLANT
Digitally signed (BY SRI. C.S. SHETTER FOR SRI. JAGADISH PATIL, ADVOCATES)
by SAMREEN
AYUB
DESHNUR
Date:
AND:
2023.12.21
11:32:38 +0530
1. U.F.M. MANJUNATH
S/O. MARTHU PRABHU
SINCE DECEASED BY HIS LRS
1.(A) SMT. MEENA
W/O. MANJUNATH PRABHU,
AGE: 78 YEARS,
R/O: MATHAKERI, TAL: ANKOLA,
DIST: UTTAR KANNADA.
1.(B) SHRI. AMOL
S/O. MANJUNATH PRABHU,
AGE: 47 YEARS,
R/O: MATHAKERI, TAL: ANKOLA,
DIST: UTTAR KANNADA.
1.(C) SNEHAL D/O. MANJUNATH PRABHU,
AGE: 51 YEARS,
R/O: MATHAKERI, TAL: ANKOLA,
DIST: UTTAR KANNADA.
2. ANANT S/O. MARTHU PRABHU,
AGE: 74 YEARS,
2 RFA No. 100041 OF 2015
R/O: OWNER COURT,
MOGHAL LANE MAHIM,
MUMBAI - 4000016.
3. NARAYAN S/O. MARTHU PRABHU,
AGE: 72 YEARS,
R/O: SHANTI APARTMENT,
GREEN STREET, KARAWAR - 5810301.
4. SMT. VIJAYA W/O. MUKUND KENKRE,
AGE: 75 YEARS, OCC: HOUSEHOLD,
R/O: HIRABAD MANSION,
SHEETALADEVI TEMPLE ROAD,
MOGHAL LANE MAHIM,
MUMBAI-400016.
5. PADMAVATI D/O. NARAYAN PRABHU,
AGE: 61 YEARS,
R/O: SHANTY APARTMENT,
GREEN STREET, KARWAR-5810301.
6. YOGITA D/O. NARAYAN PRABHU,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O: JAVAHAR ARCADE,
TARA NAGAR, SANGUEM, GOA-403505.
7. VITHOBA S/O. SUBRAY PRABHU,
DECEASED BY HIS LR'S
7.(A) SANJAY VITHOBA PRABHU,
AGE:50 YEARS,
8. AJIT S/O. RAMAKRISHNA PRABHU,
AGE: 46 YEARS,
9. SUBRAY S/O. PONDU PRABHU,
AGE: 67 YEARS,
10. PUNDALIK S/O. PONDU PRABHU,
AGE; 64 YEARS,
11. DAMODAR S/O. PONDU PRABHU,
AGE: 63 YEARS,
12. DEVIDAS S/O. PONDU PRABHU,
AGE: 61 YEARS.
3 RFA No. 100041 OF 2015
RESPONDENT NO. 7 TO 12 ARE
R/O: MATHAKERI, TAL: ANKOLA - 581314.
...RESPONDENTS
(BY SRI. RAMACHANDRA A. MALI ADVOCATE FOR R1 (A TO C);
SRI. NAVEEN R. MALINAMANI ADVOCATE FOR R3;
SRI. P.V. GUNJAL ADVOCATE FOR R2 AND R4;
NOTICE SERVED TO R5 TO R12)
THIS REGULAR FIRST APPEAL FILED UNDER ORDER XLI RULE 1 R/W
SEC. 96 OF CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED: 31/10/2014 AND DECREEING THE SUIT
FILED BY APPELLANT PASSED IN O.S. NO. 10/2010 BY THE SENIOR CIVIL
JUDGE KUMTA, SITTING AT ANKOLA IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
The above captioned appeal is directed against the judgment and decree dated 31.10.2014 in O.S.No.10/2010 passed by the Senior Civil Judge, Kumta, itinerary sitting at Ankola (for short "the Trial Court") dismissing the suit filed by the appellant-plaintiff.
2. For the purpose of convenience, parties are referred to as per their rank before the Trial Court.
3. The case of the plaintiff in brief is as under:
4 RFA No. 100041 OF 2015
That, the plaintiff filed a suit against the defendants seeking the relief of partition and separate possession of the suit schedule properties by awarding 25/320th share in the same by metes and bounds.
It is the case of the plaintiffs that, he is the son of defendants 3 and 5. Defendant No.6 is his sister and married daughter of defendants 3 and 5. It is his case that, defendants 1 to 3 are direct brothers. One Mr.Marthu Vithoba Prabhu was the propositus. He died at Bombay on 25.12.1977 leaving behind his wife Radhabai and three sons i.e. defendants 1 to 3 and two daughters i.e. defendant No.4 and one Sindhu. The wife of Marthu died on 21.04.1990. These defendants 1 to 4 and Sindhu are the only legal heirs of deceased propositus and his wife. They are entitled to succeed to their properties.
When Marthu was alive, all the suit schedule immovable properties were standing in his name. After his demise, the names of defendants 1 to 3 came to be entered. The propositus and his wife left vast immovable properties, gold ornaments, cash and silver and other utensils. Thus, all these properties are in joint possession and enjoyment of defendants 1 to 6. It is alleged that, it was defendant No.1, who used to manage the affairs of the family being a Kartha as elder son of the propositus.
5 RFA No. 100041 OF 2015
It is further alleged by the plaintiff that, it was learnt by him that Smt.Sindhu, the sister of defendants 1 to 3 being eldest daughter of propositus filed a partition suit on the file of Civil Judge, Karwar. The said suit came to be compromised. Defendant No.1 entered into compromise and paid money out of the income received from the joint family properties. As she has already taken her share in the joint family properties, she is not arrayed as a party to this suit.
It is contended that defendants 7 to 12, so arrayed in the plaint, are formal parties as their name is appearing in Samayik in respect of Sl. No.11 and 12 of 'A' schedule properties. They are not the members of joint family of the plaintiff and defendants 1 to 6. No claim is made against them. When plaintiff demanded to effect partition, there was a flat denial. Therefore, the plaintiff was constrained to file suit seeking partition. When there was a demand, there was no satisfactory answer given by his father. It is contended that, defendant No.1 is liable for the loan being raised by him to the extent of Rs.28,00,000/- by keeping security of Sl.No.2 to 4 properties. Thus, it is prayed by the plaintiff to decree the suit as prayed for.
4. Pursuant to the suit summons, defendants 1 to 4 appeared through their respective counsels and defendants 1 and 3 filed their independent written statements. Defendants 2 and 4 filed their joint 6 RFA No. 100041 OF 2015 written statement. To the written statements so filed by defendants 1 and 3, there is additional written statement filed by them.
Throughout the written statement filed by defendant No. 1, it is contended by him that, his brother i.e. defendant No.3 has instigated his son i.e. plaintiff to file this present suit. Recently, defendant No.3 issued a notice to him through his lawyer on 03.11.2009 alleging that, he is the member of the coparcenary and defendant No.1 is the manager in the family. Defendant No.3 claimed his share in the joint family properties. Defendant No.3 has issued notice stating that, in case if no partition is effected, he will be constrained to file suit against defendant No.1. The said notice was duly replied by defendant No.1 by giving entire factual events that have taken place with regard to the suit schedule properties. It is stated by defendant No.1 that, he has given share to all his brothers and sisters. But defendant No.3, to have an unjust and illegal gain, demanded the share. In view of issuing reply by defendant No.1, he has prompted and instigated his son to file a suit against all the defendants.
Throughout the written statement, it was contended that, his father-Marthu got the properties by virtue of registered partition deed dated 10.04.1941. Independently, he got the properties. Even defendant No.1 also purchased the schedule properties after effecting 7 RFA No. 100041 OF 2015 partition. He being elder member of the family, he brought up all his brothers and sisters. He had performed the marriages of his sisters. Even till date, defendant No.1 and others are attending their family house for the purpose of performing religious ceremonies. He went to Mumbai in the year 1971. His wife is a Dietician and working in KEM Hospital Mumbai. At earliest point of time, he was unable to contribute to maintain the family. Because of his hard work at Mumbai, he could help his family members including his brothers and sisters. So, far as death of his father Marthu in the year 1977 it is admitted. Even he has met all the family expenses.
It is further contended that, after demise of their father, the names of defendant No.1 to 3 came to be mutated in respect of family properties. Defendant No.4 and his another sister Sindu have relinquished their rights with clear understanding that they have already compensated by this defendant No.1 at the time of performing their marriages. Even this defendant No.3 has also received money. Whatever compensation received from the Land Tribunal to the extent of Rs.2,16,914.75/- was given to their mother. She had paid the same to her daughters. Therefore, it is contended that Rs.25,000/- was quantified as share of defendant No.3. Each sharer was paid Rs.25,000/- by cheque on 18.05.1983. As per the understanding and 8 RFA No. 100041 OF 2015 agreement amongst the parties, on 18.05.1983 itself, the joint family status came to an end. Already there was a partition in respect of family properties. Now, the plaintiff has to claim his share from his father and not from defendant No.1. Even the said Sindhu was compensated by paying Rs.4,50,000/- in full settlement of her claim. As the lawyers, who have issued notice are the close relatives of defendant No.3, they instigated the plaintiff to file the present suit.
Thus, by contending so many factual features, that have taken place in the family, it is prayed by defendant No.1 to dismiss the suit.
5. Even defendants 2 and 4 have filed their written statement. They have denied all the assertions made in the plaint. Defendants 2 and 4 admit the relationship. The plaintiff and defendants have not continued as joint family members since 1993-
94. They contended that, the schedule property is a separate property of defendant No.1 alone. Already there was oral partition in the year 1993-94 between the members of the family. These defendants 2 to 4 were parties to the said partition. There was a suit bearing O.S.No.29/1994 filed by Sindhu before the Senior Civil Judge, Karwar. She has received Rs.4,50,000/- from defendant No.1. Thus, there exists no joint family status.
9 RFA No. 100041 OF 2015
6. Whereas, defendant No.3 by filing his written statement denied all the contentions taken by defendant No.1. He contends that, still the joint family status exists and he is entitled for share. It is contended that defendant No.1 had given a special power of attorney in the year 1981 to effectively manage the joint family affairs on behalf of the entire family. The mother-Radhabai was not signatory to the said GPA. Acting upon the same, defendant No.1 got mutated the revenue records in his name. Defendant No.3 came to know about the said fact recently. He has received large payment of compensation and also income from the properties. He denied all the assertions and contentions taken by defendant No.1 in the written statement. There is no relinquishment of shares by any members of the family as per contention of defendant No.3. To this contention, defendant No.1 has filed his additional written statement denying all the contentions taken by defendant No.3.
7. Based upon the aforesaid rival pleadings of both the parties, the learned Trial Court framed in all six issues. They read as under:
10 RFA No. 100041 OF 2015
1. Whether the plaintiff proves that the plaint 'A' and 'B' schedule properties are the joint family properties of the plaintiff and defendants?
2. Whether the defendant No.1 proves that there is already a partition of the properties between the plaintiff and defendants as pleaded by him in the para 17 of the written statement?
3. Whether the defendant Nos.1, 2 and 4 prove that defendant Nos.2 & 4 and Smt. Sindhu have released their share in respect of the suit schedule properties in favour of the defendant No.1?
4. Whether the plaintiff proves that he is entitled for share in the compensation amount received by the defendant No.1 from the Government under the Karnataka Land Reforms Act with interest at 15% p.a. from the said date till the date of payment?
5. Whether the plaintiff proves that he is entitled for 25/320 share in the suit schedule properties?
6. What order or decree?
8. To substantiate and prove the case of the plaintiff, he himself was examined as PW1 before the Trial Court and got marked Exs.P1 to Ex.P26 and closed plaintiff evidence. Defendant No.1 entered the witness box as DW1 and got marked Exs.D1 to Ex.D22 and closed his evidence. The other defendants have not led any evidence to 11 RFA No. 100041 OF 2015 substantiate their respective pleas taken up in their respective written statements.
9. On hearing the arguments and also on evaluation and assessment of evidence, the Trial Court answered issue No.1, 4 and 5 in the negative and issue No.2 and 3 in the affirmative and ultimately dismissed the suit of the plaintiff.
10. Now the appellant-plaintiff is before this Court challenging the dismissal of his suit by the Trial Court by filing this appeal.
11. It is argued by the counsel for the appellant that, so far as genealogy is concerned, it is not disputed. The propositus Marthu Vithoba Prabhu and his wife Radhabai in all have five children i.e. defendants 1 to 3 being sons and defendant No.4 being daughter and one more daughter by name Sindhu. It is an admitted fact between both the parties that, during the year 1994, this Sindhu, the another daughter of Marthu and Radhabai filed a suit before the Senior Civil Judge, Karwar and got it compromised towards her share. It is the case of the plaintiff and defendant No.1 that, it was defendant No.1 who paid Rs.4,50,000/- to Sindhu and thereby she has given up/ relinquished her share in the properties left behind Marthu and Radhabai. Now the dispute is in between defendants 1 to 4 and the 12 RFA No. 100041 OF 2015 present plaintiff. The present plaintiff is the son of defendant No.3 and Padmavathi, who is arrayed as defendant No.5 in this suit. In the wedlock between defendant No.3 and defendant No.5-Padmavathi, they have two children i.e. plaintiff and daughter-Yogita (defendant No.6).
12. It is submitted by the learned counsel for the plaintiff that, though defendant No.1 asserts about effecting of partition orally and paying Rs.25,000/- to defendant No.3, it is not proved. Plaintiff being a son of defendant No.3 can claim share. It is his submission that, when the schedule properties are the ancestral properties and they have a status of the joint family properties, the plaintiff being son of defendant No.3 is claiming his share. Therefore, according to his submission, he is entitled to have his legitimate share from the share of his father-Narayan i.e. defendant No.3.
13. It is his submission that, even defendant No.3, his father, has not admitted the said partition. When he demanded his father to effect partition, it was told to the plaintiff that, no partition has taken place in the ancestral properties. As the properties were still hold the status of ancestral joint family, he submits that, though the sister of defendants 1 to 4 by name Sindhu by filing a suit claimed her share 13 RFA No. 100041 OF 2015 and received Rs.4,50,000/-, that does not that, mean the status of joint family properties is not in existence.
14. According to the counsel for the appellant-plaintiff, the Trial Court has not kept in mind the legal status of these defendants as all the properties were not partitioned by metes and bounds. There is no registered document or decree passed by the competent civil Court in respect of effecting partition in between defendants 1 to 4. Therefore, he submits that, the Trial Court believed the contents of written statement and the evidence of defendant No.1 and has wrongly dismissed the suit filed by the plaintiff. He craves to allow the appeal and set aside the impugned judgment and to decree the suit as prayed for.
15. As against this submission, counsel for defendant No.1 submits before the Court that, in the year 1994 itself there was a partition. These defendants 2 to 4 executed power of attorney in favour of defendant No.1, as he was managing the properties and they have relinquished/given up their right in the properties by receiving Rs.25,000/- each. He has paid the same by way of cheque. Therefore, when already there was an oral partition, this plaintiff if at all wants to have any share in the properties, he has to ask his father i.e. defendant No.3 and not these defendants 1, 2 and 4. It is his 14 RFA No. 100041 OF 2015 submission that, when documentary evidence plays an important role with regard to partition and even this plaintiff on the guise of seeing records has taken away all the records, which were available with defendant No.1 and misused the same, it is his submission that the Trial Court has rightly dismissed the suit of the plaintiff. In support of his arguments, he has relied upon the following judgments:
i) In Uttam v. Saubhag Singh and others1
ii) In Kesharbai @ Pushpabai Eknathrao Nalawade (D) by LRs and another v. Tarabai Prabhakarrao Nalawade and others2
16. So far as other defendants i.e. 2 and 4 are concerned, they submit that already there is a partition etc. But defendant No.3 disputes the same.
17. In view of rival submissions of both the sides, the points that would arise for our consideration are as under:
1. Whether the findings of the trial Court about earlier partition set up by defendant No.1 and that the Trial Court dismissing the suit of the plaintiff, suffers from illegality, perversity and require interference by this Court?
1
(2016) SCC 68 2 [2014] SCCR 410 15 RFA No. 100041 OF 2015
2. If so, whether the plaintiff is entitled for share in the joint family properties from the defendants and from whom?
Point No.1 and 2 are discussed together.
18. So far as genealogy is concerned, Marthu Vithoba Prabhu is the propositus of the family and he died on 25.12.1977. During his lifetime, he was possessing vast properties in his name. It is an admitted fact that, he had a wife by name Radhabai. There were five children in all i.e. three sons and two daughters. Defendants 1 to 3 are the sons, defendant No.4 is a daughter and another daughter is Sindhu. The said Sindhu is not arrayed as a party to the present suit since she had already relinquished/given up her share in the schedule properties by filing a civil suit, which ended in compromise. The present plaintiff and defendant No.6 are the children of defendant No.3-Narayana and his wife Padmavathi, who is defendant No.5 in the present suit.
19. So far as joint family status between the plaintiff and defendants is concerned, PW1 being plaintiff has reiterated the plaint averments in his evidence on oath. In support of his evidence, he has 16 RFA No. 100041 OF 2015 relied upon various documents such as RTC extracts, property extracts, assessment extracts, mutation entries certified by the revenue authorities and copies of the power of attorney stated to have been executed by his brothers and sister i.e. defendants 2 to 4 in favour of defendant No.1.
20. This PW1 is thoroughly and intensively cross-examined by the defendants. He is consistent that when he demanded for effecting partition with his father and asked him about the features of the schedule properties, his father-defendant No.3 did not give any proper answers. Even he called defendant No.1 through telephone and demanded to effect partition, but defendant No.1 did not speak anything about the same and he disconnected his phone call. Throughout the evidence, it is brought on record that, this plaintiff is quite ignorant about where exactly the schedule properties of the family of Marthu are situated and what are the crops grown in the schedule properties. So also, what is the income derived from the said properties. Even he is unable to depose regarding since how many years his father has not visited the schedule properties of the family. He admits that, defendant No.1 took his parents to Mumbai for the purpose of his livelihood. At Mumbai his father was employed. He had purchased a house at Mumbai but he sold the same and came back to 17 RFA No. 100041 OF 2015 his native place. Even he is unable to say what are all the gold and silver ornaments and immovable properties are being available in the family. He is quite ignorant of all these features of the family.
21. He admits that Sindhu filed a suit in O.S.No.29/1994 on the file of Senior Civil Judge, Karwar and in the said suit, partition has taken place and she was given her share by paying Rs.4,50,000/- to her. He denies that, there was oral partition and in the said oral partition, by giving Rs.25,000/- his father has relinquished his share. He denies the suggestion that, because of receipt of Rs.25,000/- by his father, he has lost his right in the schedule properties. He is consistent about he demanding partition and regarding status of schedule properties as that of joint family.
22. Ex.P1 to Ex.P13 are the RTC Extracts. Ex.P1 to P5 are exclusively standing in the name of defendant No.1, Ex.P6 is standing in the name of defendant No.1 and one Subraya, Pandurang and Damodar, who are defendants 6 to 9. Ex.P7 is standing in the name of Manjunath and others. Even some of the documents are also standing in the name of defendants 5 to 9. Ex.P14 to 16 are the property extracts, which are exclusively standing in the name of defendant No.1. It is the case of the plaintiff that, on the guise of managing the 18 RFA No. 100041 OF 2015 properties, this defendant No.1 got his name entered in all these revenue records.
23. He also has produced the mutation entries as per Ex.P17 wherein, in the year 1981 itself on demise of Marthu Vithoba Prabhu, the names of these defendants 1 to 3 came to be entered as legal representatives of said Marthu in respect of the properties mentioned in Ex.P17. Ex.P18 is another mutation bearing No.8930 wherein the names of defendants 1 to 3 were entered jointly in respect of the properties of the family. Likewise, other revenue record is also produced by the plaintiff as per Ex.P19. Ex.P20 is the Varadi given by defendant No.1 to enter his name in the revenue records stating that defendants 2 and 3 have given up their rights in the properties. Ex.P21 is another requisition submitted by defendant No.1 to the Village Accountant, Ankola to delete the names of defendants 2 and 3 and enter the name of defendant No.1 in the revenue records.
24. He bases his claim upon the general power of attorney stating that as defendants 2 and 3 have executed power of attorney to manage the properties and therefore, the defendant No.1 requested the revenue authorities to enter his name. A copy of the same is produced as per Ex.P22. The other RTC extracts show that, family of the plaintiff was cultivating the properties personally. It is submitted 19 RFA No. 100041 OF 2015 by the counsel for the plaintiff that based upon the power of attorney at Ex.P23, defendant No.1 got mutated his name in the revenue records. According to his submission, it is illegal.
25. Under the provisions of Karnataka Land Revenue Act, if any deletion or addition of names in the revenue records has to take place, the revenue authorities have to follow the mandatory provisions of Section 128 of the Karnataka Land Revenue Act. That means, deletion or addition of names has to take place based upon registered documents. Merely because a Varadi is given based upon power of attorney, it would not empower the revenue authorities to delete or add the name of any person in the revenue records. That means, the very mutation entry so relied by defendant No.1 is against the provisions of Karnataka Land Revenue Act.
26. To rebut the evidence of the plaintiff, defendant No.1 has reiterated all the contentions taken up in the written statement. He contends that, as he was elder member of the family, he has taken care of entire affairs of the family and brought up all his brothers and sisters. Even when Sindhu filed a suit for partition, he himself has paid Rs.4,50,000/- to her and therefore, already there was an oral partition in between himself and his brothers and sisters. He has paid Rs.25,000/- each to his two brothers and one sister by name Vijaya, 20 RFA No. 100041 OF 2015 who are defendants 2 to 4 in the present suit. Since earlier partition is being proved by him, the plaintiff is not entitled to claim any share in the schedule properties. He contends throughout in the written statement that, the plaintiff has to be non-suited.
27. He has been cross-examined by the counsel for the plaintiff and quite interestingly, defendant No.1 filed additional further examination in chief by way of affidavit inter alia contending that, he is ready to give share to defendant No.3 if whatever properties in his possession and whatever the house property being enjoyed by the family is retained in joint so as to perform the family function in the said house. Thereby he states that he has no objection to give share to defendant No.3. He says that except residential house, the partition may be effected.
28. At one breath he denies the shares of defendants 2 and 3 and also the plaintiff, but by filing additional written statement he states that, because of talks before filing this additional affidavit, he has come to the conclusion that he would give share to his brothers and other sister-Vijaya. This stand taken by defendant No.1 is quite inconsistent. No doubt, defendants can take inconsistent stands in their written statement. When his brothers say that, no partition has taken place and defendant No.3 has not received Rs.25,000/-, it is for 21 RFA No. 100041 OF 2015 defendant No.1 to prove the payment and relinquishment of their share in his favour. But except self-serving testimony of defendant No.1, there is no evidence about effecting of oral partition as stated by him. He admits categorically in his cross-examination at Page 14 dated 09.11.2012 that, there is no registered document executed by his brothers relinquishing their shares in his favour in respect of schedule properties. He admits that, Sindhu has taken Rs.4,50,000/- by way of compromise. He has withheld some important documents and as per his evidence at page No.16 also he has deposed that, he has not produced the document i.e. Power of Attorney as it goes against his defence and quite interestingly, this evidence has been spoken to by DW1.
29. He relies upon various documents. Amongst those documents Ex.D1 shows that joint name is entered in the revenue records so also Ex.D2. He relies upon his own Varadi as per Ex.D3, wherein he himself has stated that his brothers have given up their joint rights in the schedule properties and therefore, he requested the revenue authorities to enter his name exclusively in respect of properties mentioned in the Varadi. Based upon that, the revenue authorities effected the mutation entries as per Ex.D4 on 22.02.1993 and deleted the names of brothers of defendant No.1. As stated supra, 22 RFA No. 100041 OF 2015 it is quite against the Karnataka Land Revenue Act. The said certification of mutation entry was effected only based upon the Varadi. No notice was issued to the brothers of defendant No.1. If the name of brothers of defendant No.1 were to be deleted as requested by defendant No.1, under the provisions of Karnataka Land Revenue Act, it was mandatory on the part of revenue authorities to issue notice to the aggrieved persons. But no notice was issued. Ex.D6 is also a Varadi submitted by defendant No.1 to the village accountant with regard to details of surviving heirs of propositus-Marthu Vithoba Prabu. Ex.D7 is the mutation entry wherein on demise of father- Marthu, the names of his all sons came to be entered as joint owners. So also it continued as per Ex.D8 to Ex.D10 as per the Varadi given by defendant No.1. Based upon that, Ex.D11 came to be certified. Ex.D12 is the notice issued by defendant No.3 by sending inland letter addressed to Panduranga Prabhu. To this letter, reply was given by the counsel denying the contents of notice. That means, these defendants 1 and 3 are fighting like logger heads claiming their rights in the schedule properties being full blood brothers.
30. Ex.D16 is a copy of the plaint in suit filed by Sindhu against defendants 1 to 3 and sister-Vijaya and F.M.Vithoba seeking partition. She has categorically stated that no partition has taken place 23 RFA No. 100041 OF 2015 and she wants a share in the schedule properties. Said suit ended in compromise. To that effect, certified copy of the order sheet so maintained in O.S.No.29/1994 is produced by defendant No.1. This order sheet shows that Sindhu had received Rs.4,50,000/- on 15.04.2004 towards her share. So, this order sheet and the plaint shows that, the said plaintiff in O.S.No.29/1994 has received Rs.4,50,000/- exclusively towards her share, the properties standing in the name of Manjunath remained intact. There is no whisper in the memo so filed regarding other defendants arrayed in the said suit have also given up their shares by way of compromise. If really the version of defendant No.1 is to be accepted, that already there was partition, he could have reported the same in O.S.No.29/1994 stating that his brothers and one more sister-Vijaya have also relinquished their share in his favour. But he kept mum. He entered compromise only with Sindhu, the plaintiff in O.S.No.29/1994. So, this conduct of defendant No.1 also shows that for the sake of defence, to deprive his own brothers' share, he might have taken such a defence. This possibility cannot be ruled out.
31. Ex.D18 is a copy of the memo filed by the plaintiff and her counsel during the course of evidence and it was brought on record that the matter would be compromised and settlement was arrived at 24 RFA No. 100041 OF 2015 by the plaintiff-Sindhu by receiving Rs.4,50,000/- and thereby suit came to be compromised and closed. Ex.D19 is a decree passed in O.S.No.29/1994. The said decree has become final.
32. The main allegations are made against defendant No.3 that the father-in-law of defendant No.3 is an advocate and at his advice, defendant No.3 has acted. Even plaintiff has also taken instructions to file the suit. Therefore, to harass defendant No.1 the suit is designed. To prove the same, except self-serving testimony, no other documents are produced.
33. The counsel for defendant No.1 much relied upon the list of documents submitted to the Court on behalf of defendant No.1 on 06.01.2011 wherein it is stated that, all the carbon copies have been retained by him and all original documents which were with him were taken away by the plaintiff on the guise that he will show it to advocate. But no steps were taken by defendant No.1 calling upon the plaintiff to produce the said documents, which were there in his possession. Under the Code of Civil Procedure, provision is very much available to summon documents. But defendant No.1 has produced photocopies and carbon copies of the documents and has not made any attempt to get them marked even as secondary evidence by way 25 RFA No. 100041 OF 2015 of confrontating to PW1. So, unmarked document cannot be relied upon.
34. Thus, on overall cumulative reading of entire evidence placed on record by the plaintiff and defendants, it goes without saying that, the defendant No.1 has utterly failed to prove that, he has tendered money towards share of his brothers and other sister-Vijaya and they have given up/relinquished their shares in the schedule properties and thereby he has become exclusive owner of the schedule properties. This contention of defendant No.1 in view of the evidence brought on record cannot be accepted.
35. Now the question comes that how much share the plaintiff and defendants 1 to 4 are entitled to get in the schedule properties by metes and bounds is required to be answered. In view of the judgment of the Hon'ble Apex Court in the case of Vineeta Sharma v. Rakesh Sharma3 as well as by virtue of provisions of Sections 6 and 8 of the Hindu Succession Act, we have to apply the provisions of notional partition.
36. As per Hindu Succession Act, daughter is also entitled for share equal to that of son. Defendant No.4 is daughter of the propositus-Marthu. She was not given any share. By virtue of Section 3 (2020) 9 SCC 1 26 RFA No. 100041 OF 2015 6 of the Hindu Succession Act, she is also entitled to share equal to that of a son. So far as Sindhu is concerned, as already she has given up/relinquished her share by receiving Rs.4,50,000/- she is not entitled for any share in the schedule properties. Including Marthu, his wife-Radhabai and children Manjunath, Anant , Narayana and Vijaya are entitled to equal share in the schedule properties since the properties falls within the jurisdiction of Bombay-Karnataka area and when a partition takes place, wife is also entitled for a share in the properties equal to that of a son. Radhabai w/o. Marthu was alive when Marthu died. So, by applying the principles of notional partition, initially, there would be five shares in between Marthu, Manjunath (Defendant No.1), Anant (Defendant No.2), Narayana (Defendant No.3) and Vijaya (Defendant No.4). Thus, initial allotment of share to defendant No.1 is 1/5th in the schedule properties. Defendants 2 to 4 each would get 1/5th share in the schedule properties. On demise of Marthu, since Radhabai was alive, his 1/5th share has to be divided amongst Radhabai and defendants 1 to 4, which would be 1/25th each. That means, defendants 1 to 4 each would get 1/5th + 1/25th (Marthu's share divided in five equal shares). Thereafter, after the death of Radhabai, her 1/25th share has to be divided in between defendants 1 to 4, which would come to 1/100th share each. Hence, in all 27 RFA No. 100041 OF 2015 defendants 1 to 4 each are held entitled to 1/5th + 1/25th + 1/100th =25/100th (1/4th share each) in the schedule properties by metes and bounds.
37. Now the plaintiff is not a coparcener along with his father and uncles. Whatever the share defendant No.3-Narayana, his father is entitled, the plaintiff has to claim share in the properties falling to the share of his father. Since defendant No.3-Narayan, the father of the plaintiff, is entitled to 1/4th share in the schedule properties and since defendant No.3 and his wife (plaintiff's mother) both are alive and as the plaintiff is having a sister-Yogita (defendant No.6), there would be again four shares in 1/4th share of defendant No.3 according to which, the plaintiff is held entitled to 1/16th share, his sister-Yogita (defendant No.6) is held entitled to 1/16th share, defendant No.3 is held entitled to 1/16th share and the wife of defendant No.3 i.e. Padmavathi (defendant No.5) is held entitled for 1/16th share.
38. During the pendency of this appeal, it is reported that defendant No.1, who is respondent No.1 in this appeal, has died. Accordingly, his legal heirs are brought on in the shape of respondents 1(a) to 1(c) and cause title of the appeal memo came to be amended to that effect.
28 RFA No. 100041 OF 2015
39. The learned Trial Court has not considered all these aspects and has given findings that the provisions of Hindu Succession Act has no application and that the earlier partition is proved. No doubt, immediately filing of the suit by Sindhu in O.S.No.29/1994 there is severance of status of the joint family, but in between defendants 1 to 4 there was no partition of the schedule properties. The properties retained by the family were subsequently entered in the name of defendant No.1 by virtue of Varadi. That means, there was no partition amongst defendants 1 to 4 by metes and bounds in respect of schedule properties. Though Sindhu has taken Rs.4,50,000/-, the properties remained in the family of defendants 1 to 4 and they are deemed to be entered in joint names of defendants 1 to 4. Merely on execution of affidavit and giving Varadi would not confer any exclusive title in favour of defendant No.1. Though there is severance of status, the properties remained joint and therefore, whatever arguments advanced by defendant No.1 has no force and untenable has to be discarded.
40. Though the counsel for defendant No.1 relied upon judgment cited supra, but they cannot be justifiably made applicable to the facts of this case. Therefore, in view of all these factual features, the Trial Court ought to have decreed the suit of the plaintiff 29 RFA No. 100041 OF 2015 awarding his legitimate share in the schedule properties. But it has not considered the same and simply without assigning proper reasons, has dismissed the suit, which is incorrect and illegal. This Court being the last fact finding Court has to re-appreciate the evidence and apply proper law and consider the appeal as provided under Section 96 of the Code of Civil Procedure.
41. We have evaluated and assessed the evidence and have come to a conclusion that, the learned Trial Court is not right in dismissing the suit of the plaintiff. Therefore, the impugned judgment passed by the Trial Court requires interference and is liable to be set aside. The suit of the plaintiff deserves to be decreed. Accordingly, the above said points are answered. Resultantly, we pass the following:
ORDER
i) The appeal is allowed.
ii) Suit of the plaintiff in O.S.No.10/2010 is decreed by setting aside the judgment and decree dated 31.10.2014 passed by the Senior Civil Judge, Kumta, itinerary sitting at Ankola.
iii) The plaintiff is entitled for 1/16th share in 1/4th share of his father-defendant No.3.
iv) The respondents 1(a) to 1(c), who are legal heirs of deceased defendant No.1/respondent No.1, 30 RFA No. 100041 OF 2015 together are entitled to 1/4th share of deceased defendant No.1/respondent No.1.
v) Likewise, defendants 2 and 4 each are entitled for 1/4th share in the schedule properties by metes and bounds.
vi) Defendant No.3-Narayan, his wife-Padmavathi i.e. defendant No.5 and daughter-Yogita i.e. defendant No.6 are entitled for 1/16th share each in 1/4th share of defendant No.3 in the suit schedule properties.
vii) Respondents 1(a) to 1(c), respondents 2 and 4 to 6 are directed to pay the requisite court fee towards their shares.
viii) There shall be preliminary decree in the above terms.
ix) Parties to the suit are at liberty to request the FDP Court for application of principles of equity in allotment of shares at the time of drawing up of final decree.
Sd/-
JUDGE Sd/-
JUDGE YAN