Karnataka High Court
Sri Thimma Reddy vs Chandrashekara Reddy on 17 November, 2017
Equivalent citations: AIR 2018 KARNATAKA 54, 2018 (1) AKR 481
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.2159 OF 2012
BETWEEN
SRI. THIMMA REDDY,
SON OF VENKATAPPA REDDY,
AGED ABOUT 60 YEARS,
NEAR TULASI THEATRE,
MARATHAHALLI,
BANGALORE-560037. ...APPELLANT
(BY SRI. R.NATARAJ, ADVOCATE)
AND
1. CHANDRASHEKARA REDDY,
AGED ABOUT 42 YEARS,
2. SRI. M.G.JAYARAM,
AGED ABOUT 37 YEARS,
3. SRI. G.SRINIVASA REDDY,
AGED ABOUT 37 YEARS,
1 TO 3 ARE THE SONS OF
GURUMURTHY REDDY
4. SRI. R.PRADEEP,
SON OF RAJAGOPALA REDDY,
AGED ABOUT 30 YEARS,
2
5. SRI. R.DILIP,
SON OF RAJAGOPALA REDDY,
AGED ABOUT 26 YEARS,
6. SRI. GURUMURTHY REDDY,
AGED ABOUT 67 YEARS,
7. SRI. RAJAGOPALA REDDY,
AGED ABOUT 57 YEARS,
ALL ARE RESIDING NEAR
TULASI THEATRE,
MARATHAHALLI,
BANGALORE-560037. ...RESPONDENTS
(BY SRI V.VISHWANATH & M.K.SHIVARAJU, ADVOCATES,
FOR R1 TO 5)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED
26.09.2012 PASSED IN O.S.NO.16736/2005 ON THE FILE
OF XXVIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE,
DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS RFA COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The XXVIII Addl. City Civil Judge, Mayohall, Bengaluru, by his judgment dated 26.9.2012 decreed the suit of the plaintiffs, O.S.16736/2005 for partition and separate possession of their 1/7th share in the suit 3 schedule properties. Aggrieved by this judgment, the third defendant has preferred this first appeal.
2. For sake of convenience, the parties are referred with respect to their position in the suit. The suit was filed in respect of 11 items of property described in the schedule of the plaint (referred to as 'the suit property' hereafter). The plaintiffs 1, 2 and 3 are the sons of first defendant Gurumurthy Reddy. The plaintiffs 4 and 5 are the sons of second defendant Rajagopala Reddy. The plaintiffs pleaded that their grandfather was one Chikkaramaiah Reddy and that he owned number of immovable properties. He died intestate. No partition had taken place during his lifetime. On 8.9.1986 there took place a partition among defendants 1 to 3 and in this partition, properties described in schedule 'A' of that partition deed fell to the share of first defendant, schedule 'B' properties fell to the share of second defendant and 4 schedule 'C' properties fell to the share of third defendant. But, the third defendant Thimma Reddy was a stranger to the family of Chikkaramaiah Reddy. Since he was not a member of the joint family, he was not entitled to share. The defendants 1 and 2 colluded with the third defendant and entered into a partition and thus the schedule 'C' property was allotted to him. This allotment of 'C' schedule property to third defendant was illegal. The plaintiffs were minors at the time when this partition deed came into existence. Only in the month of May 2005 they came to know of this partition and immediately they verified the documents and learnt that the partition effected in the year 1986 was true. They state that allotment of 'C' schedule property to the third defendant does not bind their interest and the allotment itself was illegal. All the plaintiffs claim 1/7th share each in the 'C' schedule properties. 5
3. The first and the second defendants did not file their written statement. The third defendant contended in his written statement that their father Venkatappa Reddy was the brother of Thimmakka who was the wife of Chikkaramaiah Reddy. He has also a brother by name V.Nagaraj and they were brought up by Chikkaramaiah Reddy since their childhood. Therefore, he and his brother Nagaraj became the members of joint family of Chikkaramaiah Reddy. After the demise of Chikkaramaiah Reddy, on 8.9.1986, there took place a partition of the joint family properties. The partition deed speaks that defendant No.3 and his brother Nagaraj were the members of the joint family and in fact they also worked for the improvement of the joint family properties. For this reason, in the partition that took place on 8.9.1986, 'C' and 'D' schedule properties of the partition deed were respectively allotted to his share and his brother Nagaraj's share. Consequent to this partition, he and his brother obtained the revenue 6 records transferred to their names. They were put in exclusive possession of their shares.
4. Third defendant has further pleaded that the plaintiffs have no right to claim share. They have suppressed the fact that defendant No.2 had earlier filed a suit O.S. 11302/1997 for partition claiming 1/3rd share. It was a collusive suit between the first defendant and the second defendant. Defendant No.3 was not made a party to that suit. After he came to know about the said suit, he got himself impleaded in that suit. Thereafter, the said suit was withdrawn and, therefore, the said proceedings operate as res judicata against defendants 1 and 2.
5. The third defendant further contended that the plaintiffs and the defendants sold the properties that were allotted to them in the partition dated 8.9.1986 for valuable consideration. His brother Nagaraj, who had been allotted properties, has not been made a party in 7 the suit. The allotment of share to him is not challenged. In fact, this suit was filed by the plaintiffs on the instigation of defendants 1 and 2. The plaintiffs have challenged the partition after a lapse of about 19 years. Suit is time barred and that the plaintiffs are not entitled to the relief that they have claimed.
6. The third defendant also amended his written statement to contend further that he is in possession of the suit properties openly, exclusively, continuously and adversely to the interest of the plaintiffs since 8.9.1986. The rights if any the plaintiffs had extinguished by efflux of time and therefore he perfected his title over the suit property by adverse possession. For this reason, the plaintiffs are not entitled to claim partition. Taking up the specific plea, he set up a counter claim to declare that he had perfected his title over the suit property by adverse possession.
7. The trial Court struck the following issues:- 8
"1. Whether the plaintiffs prove that the defendant No.3 being a stranger to the family of plaintiffs and other defendants allotting the 'C' schedule properties through the partition deed dated 8/9/86 entered between D1 to D3 is null and void not binding on the plaintiffs?
2. Whether the plaintiffs are entitle for 1/7th share in the suit properties?
3. Whether plaintiffs are entitle for mesne profits?
4. Whether the defendant No.3 proves that the rights and interest in the suits properties is extinguished by efflux of time?
5. Whether the defendant No.3 proves that he has perfected his title to the suits properties by way of adverse possession?
6. What order or decree?"9
8. One witness, i.e., the first plaintiff Chandrashekara Reddy, adduced evidence as PW1 and produced 14 documents Exs.P1 to P14. The third defendant gave evidence as DW1. He produced the documents as per Exs.D1 to D9. After appreciating the evidence, both oral and documentary, the trial Court came to the conclusion that the suit had to be decreed and ordered for drawing up of a preliminary decree that the plaintiffs were entitled to 1/7th share in the suit properties.
9. I have heard arguments of learned counsel for the parties.
10. In the light of the grounds urged in the memorandum of appeal and the arguments of the counsel, the following can be raised for discussion :
(i) Can defendant No.3 be considered as a member of family of 10 Chikkaramaiah Reddy, though he is not a member of Hindu joint family?
(ii) Whether the partition deed dated 8.9.1986 is a document evidencing family settlement?
(iii) Do the plaintiffs get a right to institute a suit only in respect of the share allotted to third defendant, more so when the family settlement was accepted by defendants 1 and 2?
(iv) What is the effect of withdrawal of the suit, on the suit filed by the plaintiffs?
(v) When defendant No.3 did not prefer an appeal challenging the rejection of his counter claim by the trial Court, is it possible to say that he cannot assert his right under Ex.D9?
(vi) What order?
11Point No. (i):-
11. Defendant No.3 is the son of brother of wife of Chikkaramaiah Reddy. He has also a brother by name V.Nagaraj. The learned trial Judge has held that appellant is not a member of joint Hindu family of Chikkaramaiah Reddy, and that he is an outsider. Neither he nor his brother acquired any coparcenary interest to claim partition in the properties of Chikkaramaiah Reddy's joint family.
12. The learned counsel for appellant-defendant No.3 argued that the very approach of the trial Court was wrong; for third defendant does not claim to be a coparcener. His stand is that he and his brother were brought up by Chikkaramaiah Reddy since their childhood and they were given some properties in recognition of their contribution to the family of Chikkaramaih Reddy. Though defendant No.3 is not a member of Hindu joint family consisting of 12 Chikkaramaiah Reddy and his sons, he was member of their family. He is not totally a stranger. He is the son of brother of Chikkaramaiah Reddy's wife. He referred to the judgment of the Supreme Court in the case of KALE AND OTHERS vs DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS [AIR 1976 SC 807]. To this point of argument, the learned counsel for respondents-plaintiffs contended that defendant No.3, though stands in near relation to the plaintiffs and defendants 1 and 2, still he is considered as an outsider in the matter of sharing the properties of joint family. The trial Judge has rightly held that defendant No.3 is an outsider.
13. The view taken by the trial Court that the third defendant is not a member of joint family nor does he get a coparcenary right is, of course, correct. When whole situation is examined in the background of concepts of Hindu law relating to joint family and 13 coparcenary, what defendant No.3 has stated in his written statement is that himself, his brother Nagaraj and the defendants 1 and 2 constituted a joint Hindu family. While his stand to this extent is not correct and that the trial Court has rightly held so, still there is no dispute with regard to the fact that defendant No.3 and his brother were brought up by Chikkaramaiah Reddy treating them as his children. Therefore, they became the member of family of Chikkaramaiah Reddy. Right of a person to claim to be a member of hindu joint family or coparcener is founded on the right of succession to joint family properties, but there is no bar to claim to be an ordinary member of a family. It is in this context the Supreme Court in the case of Kale (supra) has reaffirmed its view by referring to its earlier decision in the case of Krishna Biharilal vs Gulabchand [ AIR 1971 SC 1041], that the word 'family' has a wide connotation and could not be confined only to a group of persons who were recognized by law as having a right of 14 succession or claiming to have a share. It is for this reason, defendant 3 can be considered as a member of the family of Chikkaramaiah Reddy even though he cannot be called a member of joint family. This point is therefore answered in affirmative.
Point No. (ii):-
14. There is no dispute with regard to coming into being of a document dated 8.9.1986, marked Ex.D.9 evidencing the allotment of shares of property of joint family Chikkaramaiah Reddy. The trial Court has held the partition under Ex.D.9 as illegal only for the reason that defendant No.3 and his brother are not members of joint family. The learned counsel for appellant argued that it was a document evidencing past family settlement, and not a partition deed. Family settlement is legally recognized, and properties can be allotted to a stranger to the joint family when a settlement takes place. On this point also he referred to Kale's case and 15 argued further that the share given to defendant No.3 under a family settlement cannot be held to be illegal.
15. The learned counsel for respondent argued that the true nature of a document can be deciphered from the recitals of the documents. If Ex.D9 is read, its recitals do show that it is a partition deed and not a family settlement. Since defendant No.3 is a not a joint family member, and that he had no right to claim partition, allotment of share to him was illegal. In the affidavit filed by DW1, in para 7, 8 and 9, it is stated that a partition took place and therefore even according to defendant No.3, Ex.D.9 is a partition deed and it is not a settlement deed. He argued that a partition deed was different from settlement deed.
16. The Supreme Court in Kale's case after referring to its earlier judgments, on the point of family settlement, has held as below:
16
"19. Thus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds.
27. As regards the first point it appears to us to be wholly untenable in law. From the principles enunciated by us and the case law discussed above, it is absolutely clear that the word 'family' cannot be construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property. Even so it cannot be disputed that the appellant Kale being the grand son of Lachman and therefore a reversioner at the time when the talks for compromise` took place was undoubtedly a prospective heir and also a member of the family. Since respondents 4 & 5 relinquished their claims 17 in favour of the appellant Kale in respect of Khatas 5 & 90 the appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by respondents 4 & 5. Apart from this there is one more important consideration , which clearly shows that the family arrangement was undoubtedly a bonafide settlement of disputes."
17. Thus, it is clear that if a family settlement or arrangement need not be necessarily among the members of joint family having a right of succession, but even an outsider to the family can be given a share. Requirement is that such an arrangement must be fair and bona fide.
18. The case on hand needs to be examined in the light of principles laid by the Supreme Court.
19. Ex.D9 contains a reference to the word 'partition'. It is true that in the written statement of 18 third defendant and his (DW1) evidence affidavit, an assertion is made that there had taken place a partition. For that reason alone, can it be said that it is a partition deed in reality. In my opinion, there is fine distinction between a partition deed and a family settlement. While a partition or family settlement is permitted among coparceners, it is only a family arrangement or settlement, if an outsider is included. This view is possible to be taken in view of Supreme Court's decision in Kale's case. Ex. D9 shows distribution of property to defendants 1 to 3 and also to one V.Nagaraj, brother of defendant No.3, in the year 1982, and to confirm that distribution, Ex.D9 came into existence on 8.9.1986. It is also clearly recited there that V.Thimma Reddy (defendant 3) and V.Nagaraj were treated as members of the family of defendant Nos. 1 and 2 and that they (defendants 1 and 2) decided to give share to their cousins to V.Thimma Reddy and V.Nagaraj. Therefore, when a decision was taken by them to this effect in the 19 year 1982 itself and accordingly properties described in Schedule 'C' and 'D' were given to the respective shares of Thimma Reddy and Nagaraj, it was a family arrangement arrived at with the consensus of defendants 1 and 2. It was nothing but a family arrangement, not a partition in legal sense. Ex.D9 just evidences past family arrangement. Point No. (ii) is answered in affirmative.
Point No. (iii):-
20. The learned counsel for appellant argued that the parties had acted upon the family arrangement. Defendant No.3, i.e., the appellant got the revenue katha of the properties allotted to him. Defendants 1 and 2 and their children, i.e., the plaintiffs sold away their respective shares. The plaintiffs have not challenged allotment of share to third defendant's brother Nagaraj and even he is not made a party. 20
21. The learned counsel for respondent replied to this argument that defendant No.3 did not get katha on Ex.D9; Exs. D3 to D7 are the RTC extracts which show that defendant 3 obtained katha to his name on inheritance basis, which is not and cannot be his case. He also argued that these entries were made much before execution of Ex.D9.
22. The learned trial Judge has also referred to Exs. D3 to D9 and observed that defendant No.3 could not have obtained revenue entries to his name on inheritance basis when he claims the suit property on Ex.D9. Yes, in column 9 of Ex. D3 to D5 the name of defendant No.3 is written and that entry is shown to have been made on inheritance (IHC5/84-85) and that entry, of course, leads to an inference that probably defendant No.3 obtained the katha to his name even before Ex.D9 was executed. But, the entry made in the name of defendant 3 is not a deciding factor. Exs.D3 to 21 D5 show not only the name of third defendant but also the name of first defendant Gurumurthy Reddy. Defendants 1 and 2 also were allotted shares in the family settlement and if the name of first defendant were to find a place in Exs. D3 to D5, it could be only the basis of family arrangement, not on the basis of inheriting the property of his father. It is not the case of plaintiffs that defendants 1 and 2 inherited the property of their father. Therefore, this argument of respondents' counsel fails.
23. Secondly, PW1(first plaintiff) in his cross examination admits that his father, i.e., the first defendant sold away some of the properties given to him under Ex.D9 to one Austin Raj as per sale deed marked Ex.D8 and that he (PW1) was a witness to the said sale deed. This admission of PW1 shows that the family arrangement was given into effect and the parties to the settlement acted upon it.
22
24. Thirdly, the plaintiffs have not sued the brother of third defendant, V.Nagaraj who was also a party to Ex.D9 and who had been given some properties described in schedule 'D' of Ex.D9. Excluding Nagaraj from the suit is for the reason that the sister of defendants 1 and 2 is the wife of Nagaraj. When the plaintiffs contend that defendant No.3 is not member of joint family, the same thing applies to Nagaraj also. Merely because Nagaraj's wife happens to be sister of defendants 1 and 2, does not give him the status of a member of joint family. The plaintiffs cannot challenge the family settlement only in respect of the properties allotted to defendant No.3. If they want to challenge, they must challenge the entire settlement, not a part of it according to their choice.
25. Therefore, the conduct of the plaintiffs estop them questioning Ex.D9 and seek partition in the suit properties.
23Point No. (iv):-
26. In para 9 of the written statement, defendant 3 has stated about a suit, O.S.11032/1992, filed between defendants 1 and 2. Defendant 3 was not a party in that suit. The learned counsel for appellant argued that it was a collusive suit between defendants 1 and 2 in respect of suit property. Intentionally defendant No.3 was not made a party although defendants 1 and 2 were aware that suit properties had been given to defendant No.3 in the family settlement. When defendants 1 and 2 wanted to compromise between themselves in the suit O.S.11032/1992, the third defendant came to know of it and objected to that compromise by getting himself impleaded. Therefore, the said suit came to be withdrawn. He further submitted that defendants 1 and 2, having failed in their attempt, later projected their sons to institute the instant suit. It was his argument, therefore, that the 24 suit is not maintainable. The learned counsel for respondent argued that withdrawal of earlier suit has no bearing on the plaintiffs' suit because they have independent right to claim partition.
27. The learned trial Judge ought to have discussed the effect of withdrawal of the earlier suit between defendants 1 and 2. Probably for the reason that there is no issue on this plea, the learned trial Judge has not made discussion. Yet, it is to be stated here that the withdrawal of the suit O.S.11032/1992 has its own effect. There is no evidence whether the former suit was withdrawn by obtaining liberty to file fresh suit on the same subject matter, and it is not so relevant also. If the liberty had been granted by the Court, the defendants 1 and 2 would have filed another suit. But, the question actually is as to what right the plaintiffs do get when the former suit was withdrawn. Entire situation can be brought within the scope of 25 Order 23 Rule 1 (4) CPC which bars a fresh suit in respect of same subject matter. It is needless to say that plaintiffs derive right to suit property through defendants 1 and 2. Indeed they have independent right to the extent of their share, but in view of family settlement having been acted upon to the knowledge of plaintiffs, they cannot exercise their independent right, and any right that they have to litigate again, it is only under the title of defendants 1 and 2 and thus Order XXIII Rule 1 (4) CPC operates as a bar to the plaintiffs' suit.
Point No. (v):-
28. The counsel for the plaintiffs argued by referring to the judgment of the Supreme Court in the case of PREMIER TYRES vs KERALA STATE ROAD TRANSPORT CORPORATION [1993 SUPP (2) SCC 146] that rejection of the counter claim of the third defendant having attained finality as he did not prefer 26 an appeal challenging the same, he cannot assert any title over the suit property. It amounts to admitting the ownership and title of the plaintiffs.
29. Countering this argument, learned counsel for defendant No.3 argued that the rejection of counter claim did not take away the right of the third defendant. The counter claim set up by third defendant was just an alternative relief. Defendant is entitled to take up inconsistent pleas and for this reason, if the third defendant pleaded about adverse possession and sought counter claim, it cannot be said that defendant No.3 lost his right over the suit property as per the family settlement or arrangement evidenced by Ex. D9.
30. In the Premier Tyres Limited (supra) what is held is as below :-
"4. Although none of these decisions were concerned with a situation where no appeal was filed against the decision in connected suit 27 but it appears that where an appeal arising out of connected suits is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non filing of appeal against a judgment or decree is that it become final. This finality can be taken away only in accordance with law. Same consequences follows when a judgment or decree in a connected suit is not appealed from.
5. Mention may be made of a Constitution bench decision in Badri Narayan Singh v. Kamdeo Prasad Singh. In an election petition filed by the respondent a declaration was sought to declare the election of appellant as invalid and to declare the respondent as the elected candidate. The tribunal granted first relief only. Both appellant and respondent filed 28 appeals in the High Court. The appellant's appeal was dismissed but that of respondent was allowed. The appellant challenged the order passed in favour of respondent in his appeal. It was dismissed and preliminary objection of the respondent was upheld. The Court observed, 'We are therefore of opinion that so long as the order in the appellant's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that that finding is incorrect."29
31. There cannot be a second word with regard to the ratio laid down by the Supreme Court in the above decision. It is true that defendant No.3 did not choose to prefer an appeal challenging the rejection of his counter claim. The finding of the trial Court has attained finality. But, in my opinion dismissal of the counter claim of the third defendant has least consequence on his specific defence that suit property was allotted to him in a family arrangement. When I have already come to a conclusion that Ex.D9 evidences the family arrangement that had taken place in the year 1982 and in this arrangement the defendant No.3 had been allotted suit property, the right vested in him cannot be taken away. Third defendant's right does not get extinguished because of his inconsistent plea regarding adverse possession being negatived. In fact, he was not entitled to claim adverse possession as has been rightly observed by the trial Court. For this reason, this point is answered in the negative. 30 Point No. (vi)
32. From the above discussion, I come to the conclusion that the findings of the trial Judge that the plaintiffs are entitled to 1/7th share in the suit schedule property are not sustainable. The judgment needs to be set aside and hence, the following order :-
(a) Appeal is allowed with costs.
(b) Judgment dated 26.9.2012 in O.S. No. 16736/2005 on the file of XXVIII Addl. City Civil Judge, Mayohall, Bengaluru, is set aside.
(c) Suit is dismissed.
Sd/-
JUDGE ckl