Karnataka High Court
Smt Jayamma W/O Late Gurumurhty Gowda vs Sri Ankegowda S/O Late Ankegowda on 5 October, 2012
Equivalent citations: 2012 (4) AIR KAR R 641
Author: B.Manohar
Bench: B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE B.MANOHAR
RFA NO.1763/2005 C/W RFA NO.848/2007(PAR)
RFA NO.1763/2005
BETWEEN :
1. SMT JAYAMMA
W/O LATE GURUMURHTY GOWDA
AGED ABOUT 66 YEARS
2. SRI KRISHNA GOWDA
AGED ABOUT 36 YEARS
3. SRI NAGARAJE GOWDA
AGED ABOUT 34 YEARS
4 SRI JALANDRA AGED
ABOUT ABOUT 28 YEARS
APPELLANTS 2 TO 4 ARE THE
SONS OF LATE GURUMURTHY GOWDA,
R/A CHINAKURULI VILLAGE
CHINAKURULI HOBLI
PANDAVAPURA TALUK - 571 434.
5. SMT.SHAKUNTALA
W/O SOMASHEKAR
C/O P.RAMAIAH
AGED ABOUT 38 YEARS
R/A BOOPASANDRA MAIN ROAD
NAGASHETTYHALLI
2
RMV IIND STAGE
BANGALORE - 560 094. ...APPELLANTS
(BY SRI.R.OM KUMAR, ADV)
AND:
1 SRI ANKEGOWDA
S/O LATE ANKEGOWDA
AGED ABOUT 39 YEARS
R/A CHINAKURULI
PANDAVAURA TALUK
MANDYA DISTRICT - 571 434.
2. SRI NINGEGOWDA
S/O LATE BASAVEGOWDA
AGED ABOUT 46 YEARS
SITAPURA VILLAGE
CHINAKURULI
PANDAVAPURA TALUK- 571 434.
3. SRI SHINGEGOWDA
S/O VIKUNTEGOWDANA BETTAGOWDA
SINCE DECEASED BY LRS
a) SMT. SANNAMMA
W/O LATE SHINGEGOWDA
b) SRI BETTAGOWDA
S/O LATE SHINGEGOWDA
c) SRI PUTTA BETTA GOWDA
S/O LATE SHINGEGOWDA
MAJOR
ALL ARE MAJORS,
R/AT CHINAKURULI VILLAGE
PANDAVAPURA TALUK
MANDYA DISTRICT- 571 434. ...RESPONDENTS
( BY SRI.K.V.NARASIMHAN, ADV)
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RFA FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED 24.09.2005 PASSED IN O.S.NO.123/1999
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) AND
JMFC, SRIRANGAPATNA, DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
IN RFA NO.848/2007
BETWEEN :
1. SRI.NINGEGOWDA
AGED ABOUT 46 YEARS
S/O LATE BASAVEGOWDA
R/AT SEETHAPURA VILLAGE
CHINAKURULI
PANDAVAPURA TALUK
MANDYA DISTRICT- 571 401.
2 SRI SHINGEGOWDA
S/O VIKUNTEGOWDANA BETTAGOWDA
SINCE DECEASED GY LRS
a) SMT SANNAMMA
W/O LATE SHINGEGOWDA
b) SRI BETTAGOWDA
S/O LATE SHINGEGOWDA
c) SRI PUTTA BETTA GOWDA
S/O LATE SHINGEGOWDA
ALL ARE MAJORS
R/AT CHINAKURULI VILLAGE
PANDAVAPURA TALUK
MANDYA DISTRICT - 571 401. ...APPELLANTS
(BY SRI.KEMPANNA, ADV)
4
AND :
1. SMT JAYAMMA
AGED ABOUT 66 YEARS
W/O LATE GURUMURTHY GOWDA
2. SRI KRISHNA GOWDA
AGED ABOUT 36 YEARS
3. SRI NAGARAJE GOWDA
AGED ABOUT 34 YEARS
4. SRI JALANDRA
AGED ABOUT 28 YEARS
APPELLANTS 2 TO 4 ARE THE SONS OF
LATE GURUMURTHY GOWDA
R/AT CHINAKURULI VILLAGE
CHINAKURULI HOBLI
PANDAVAPURA TALUK
MANDYA DISTRICT - 571 401.
5 SMT SHAKUNTALA
W/O SOMASHEKAR
AGED ABOUT 38 YEARS
C/O P RAMAIAH
R/AT BOOPASANDRA MAIN ROAD
NAGASHETTYHALLI
RMV II STAGE
BANGALORE - 560 094
6. SRI ANKEGOWDA
S/O LATE ANKEGOWDA
AGED ABOUT 39 YEARS
R/AT CHINAKURULI VILLAGE
CHINAKURULI HOBLI
PANDAVAPURA TALUK
MANDYA DISTRICT - 571 401. ...RESPONDENTS
( BY SRI.K.V.NARASIMHAN, ADV)
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RFA FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.24.09.2005 PASSED IN O.S.NO.123/99 ON
THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) AND JMFC,
SRINRANGAPATNA, DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THESE APPEALS ARE COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGEMENT
Appellants are the defendants 1 to 5, 6 and 7 in O.S.No.123/1999, being aggrieved by the Judgment and decree dated 24-9-2005 passed by the Principal Civil Judge (Sr.Dn.) and JMFC at Srirangapatnam, wherein the suit filed by the plaintiff is decreed, the appellants have filed these appeals.
2. Since the common question of law and facts are involved in these appeals and the common order passed in O.S.No.123/1999 has been challenged in these appeals, both the appeals are clubbed together and disposed by this common order.
3. The plaintiff filed a suit seeking for partition and separate possession of half share in the suit 'A' schedule properties and also seeking for declaration declaring that he is the owner of 'B' 6 schedule property and for recovery of possession with mesne profits and costs.
4. In the plaint, it is contended that one Ankegowda was the propositus of the family and he had a son by name Ankegowda and a daughter Ankamma. The son Ankegowda had a son by name Gurumurthy Gowda through his first wife. After the death of first wife, Ankegowda married Chikkathayamma and got a son by name Ankegowda, who is the plaintiff in the suit. The said Ankegowda died when the plaintiff was one year old. After the death of Ankegowda, the mother of the plaintiff i.e. Chikkathayamma got married to one Ningegowda of B.Hosur village and residing with him. The plaintiff has been brought up and reared by his Paternal Aunt Ankamma. She was the absolute owner of 'B' schedule property and she bequeathed the said property in favour of the plaintiff as per the registered Will dated 16-1-1975 and she died on 1-5-1983. By virtue of the said Will, the plaintiff became the absolute owner of the 'B' schedule property after the death of Ankamma.
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5. The first defendant is the wife of late Gurumurthy Gowda who died on 17-5-1996. The defendants 2 to 4 are the children of the first defendant. The family of the plaintiff and defendants 1 to 5 owned suit 'A' schedule properties as their joint family properties. After the death of Ankegowda the plaintiff and his late brother Gurumurthy Gowda were cultivating a portion of the 'A' schedule properties separately as joint owners, though there is no partition of the joint family properties by metes and bounds. However without knowledge of the plaintiff his brother late Gurumurthy Gowda alienated item No.2(a) of the schedule 'A' properties in favour of the 7th defendant as per the registered sale deed dated 8-3-1970 and put the 7th defendant in possession of the properties. The defendants 1 to 3 without having any right, title to alienate the said 'B' schedule property as per the registered sale deed dated 22-11-1993 sold the said property in favour of the 6th defendant for a sum of Rs.6,000/- behind the back of the plaintiff. Since, defendants 1 to 3 have no right to alienate the property, the 6 th defendant does not get any title over said the property. Further the joint family properties cannot be alienated by one of the co-owners and the plaintiff is entitled for the share in the said properties. Accordingly he filed the suit with the above prayers. 8
6. The defendants 1 to 6 were duly served with the notice. The 7th defendant reported to be dead and his legal representatives are brought on record as 7(a) to 7(c). The defendants 1 to 3 and 5 appeared through their counsel. Defendants 4 and 6 remained absent. Legal representatives of the 7th defendant i.e. 7(a) to 7(c) are represented through their counsel. The defendants 1 to 3 and 5 filed joint written statement. The other defendants have not filed written statement. In the written statement of defendants 1 to 3 and 5, they have denied the entire averments in the plaint in toto, except the relationship of defendants 1 to 5 with late Gurumurthy Gowda. They denied that the plaintiff is the son of Ankegowda and brother of Gurumurthy Gowda. It is denied that the mother of the plaintiff was the second wife of late Ankegowda and contended that the mother of the plaintiff i.e. Chikkathayamma is the wife of Ningegowda residing at B.Hosur village in Mandya District and she is alive. It is the specific case of these defendants that the plaintiff is no way related to the family and properties of defendants 1 to 5. They also denied that the plaintiff was brought up by late Ankamma who is the paternal aunt of the plaintiff. However admitted that during the lifetime of Gurumurthy, the plaintiff was given with some share in the suit property as per the Palupatti dated 10-4-1985 on 9 humanitarian grounds. The plaintiff and defendants 1 to 5 are in separate possession and enjoyment of their respective properties allotted to them as per the Palupatti dated 10-4-1985. Further, item No.2(a) of the suit 'A' schedule properties i.e. Sy.No.19/1 measuring 93 guntas of land and 'B' schedule property was allotted to the share of Gurumurthy Gowda as per the Palupatti dated 10-4-1985. The defendants have specifically denied the execution of the registered Will dated 16-1-1975 by Ankamma in favour of the plaintiff in respect of 'B' Schedule property. Further the 'B' schedule property was alienated on 22-11-1993 in favour of the 6 th defendant. Further, item No.2(a) in the suit 'A' schedule property was also alienated on 3-8-1970 in favour of the 7th defendant for the family necessities for settlement of family dues by Gurumurthy Gowda. Hence, the plaintiff is not entitled for any share. Further, the suit filed by the plaintiff is barred by limitation and sought for dismissal of the suit.
7. On the basis of the pleadings of the parties, the Trial Court framed the following issues for its consideration:
1. Whether the plaintiff proves that, he is a son of one Ankegowda through his 2 nd wife Smt.Chikkathayamma?10
2. Whether the defendant proves that there was panchayath palupatti on 10/04/1985 between plaintiff and one Gurumurthy as averred in para-3 of the written statement?
3. Whether the defendant proves that item-2 of plaint-A schedule property i.e., land bearing Sy.No.19/1 measuring 93 guntas was sold in favour of 7th defendant for family necessity as averred in para-3 of the written statement?
4. Whether the defendant proves that suit filed by the plaintiff is barred by limitation?
5. Whether the plaintiff proves that Smt.Akkamma while she was in sound disposing state of mind and in good health bequeathed B schedule property in his favour and the same is her last will?
6. Whether the plaintiff proves that he is entitled for half share in the suit schedule 'A' property?
8. The plaintiff in order to prove his case examined himself as P.W.1 and also examined the Sub-Registrar of Mysore as P.W.2 and got marked the documents as Ex.P1 to Ex.P14. The first defendant was examined herself as D.W.1 and examined 4 other witnesses as D.W.2 to D.W.5 and got marked the documents as Ex.D1 to Ex.D54.
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9. The plaintiff in his evidence has reiterated the plaint averments in the examination-in-chief and contended that his father was having two wives. Gurumurthy Gowda is the son born to the first wife of his father and he is the son born to the second wife. 'A' schedule properties are the joint family properties. Though he was cultivating some portions of the properties, there was no partition by metes and bounds. Ankamma had executed a registered Will in respect of 'B' schedule property. However, his brother Gurumurthy Gowda alienated item No.2(a) in the 'A' schedule properties in the year 1970 and alienated 'B' schedule property in the year 1993 in favour of defendants 6 and 7 and sought for partition of the joint family properties and also possession of 'B' Schedule property. He was cross-examined by the defendants, nothing contrary has been elicited in the cross-examination. He has denied the execution of the partition deed dated 10-4-1995 and also contended that Gurumurthy Gowda has no right to alienate the item No.2(a) in suit 'A' schedule properties and 'B' schedule property. He got marked RTC extracts as Ex.P1 to Ex.P9 and the Will dated 16-1-1975 as Ex.P10, death certificate of Ankamma as Ex.P11, signatures of Ankamma were marked as Ex.P14 and Ex.P14 (a). He further denied the execution of the partition deed and allotting item No.2(a) of 'A' schedule 12 properties and 'B' schedule property in favour of Gurumurthy Gowda.
10. In support of the execution of the Will, the plaintiff examined the Sub-Registrar, Mysore where the Will was registered as P.W.2. The P.W.2 in his evidence deposed that on the basis of the records available in their office, Ankamma executed a Will in favour of the plaintiff on 16-1-1975. In the cross-examination He deposed that he has no personal knowledge and he has deposed only on the basis of the records available in the office.
11. D.W.1 in her evidence reiterated the averments made in the written statement and denied the relationship with the plaintiff and also contended that the plaintiff is not the brother of her husband Gurumurthy Gowda and mother of the plaintiff Smt.Chikkathayamma is still alive and living along with Ningegowda at B.Hosur Village. Further Ankamma has not reared the plaintiff and bequeathed the house belonged to her in favour of the plaintiff, which was marked as 'B' schedule property. Further, for the family necessities, item No.2(a) property was sold on 3-8- 1970. Further on humanitarian grounds, some of the lands were 13 allotted to the plaintiff for his maintenance and there was already a partition between the plaintiff and defendants on 10-4-1985. She got marked the documents as Ex.D1 to Ex.D54 in support of her contention. However, in the cross-examination she herself has admitted that the plaintiff is the son of Chikkathayamma who is the second wife of Ankegowda. Further Ankamma is the sister of Ankegowda. She has sold 30 guntas of land in favour of Papegowda and bequeathed the house property situated at Seethapura in favour of the plaintiff, which was shown as 'B' schedule property. She further stated that she has seen the Palupatti and however she does not know who has written the same and who had signed the same as witness. Further she does not know how much loan has been incurred by her father-in-law. D.W.2 to D.W.5 have given stereo type witnesses in examination-in-chief stating that the plaintiff is not the brother of Gurumurthy Gowda and he was not related to the family of Gurumurthy Gowda. However, in the cross-examination they have exhibited their ignorance regarding family members and properties owned by the family of Gurumurthy Gowda and his father.
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12. The Trial Court after considering the oral and documentary evidence let in by the parties and after considering the arguments addressed by the parties, held issue Nos.1, 5 and 6 in the affirmative and issue No.2, 3 and 4 in the negative. Consequently, by its judgment and decree dated 24-9-2005 decreed the suit and held that the plaintiff is entitled to half share in the suit 'A' schedule properties and declared that the plaintiff is the owner of 'B' schedule property and entitled for recovery of the vacant possession of the suit house from 6th defendant.
13. The defendants 1 to 5 being aggrieved by the judgment and decree made in O.S.No.123/1999 filed RFA.No.1763/2005. Further defendants 6 who remained exparte before the Trial Court and the legal representatives of defendant No.7 who have also not contested the suit have filed RFA No.848/2007.
14. The appellants in RFA 1763/2005 contended that the judgment and decree passed by the Trial Court is contrary to law and evidence on record. Further, the partition deed need not be registered and there can be oral partition also. The first respondent was cultivating the land as per the partition deed entered into 15 between the parties on 10-4-1985. As per the partition, item No.2(a) in suit 'A' schedule properties and 'B' schedule property were allotted to the share of the husband of the appellant late Gurumurthy Gowda. Further item No.2(a) in the 'A' schedule property was sold in favour of the 6th defendant on 3-8-1970. The suit came to be filed on 8-11-1999 after lapse of 29 years, hence it is barred by limitation. Further, on the basis of the registered Will dated 16-01-1975, the plaintiff claimed 'B' schedule property. The said Will is not proved in accordance with law. Hence, sought for setting aside the judgment and decree passed by the Trial Court by allowing this appeal.
15. The appellants in RFA No.848/2007 contended that the first appellant purchased the 'B' schedule house property situated at Seethapura village, Pandavapura Taluk as per the registered sale deed dated 22.11.1993 for a valuable sale consideration. He was a bonafide purchaser of the land from its original owner. In the suit filed by the plaintiff, he has not sought for setting aside the sale deed dated 22-11-1993 and no relief has been sought against him though he was made a party to the proceedings. The reasoning of the court below is not based on the evidence on record. The Trial Court 16 misunderstood and misread the evidence and erroneously passed the judgment and decree and sought for setting aside the same. The legal representatives of the 7th defendant in the suit, who has purchased item No.2(a) in the suit schedule 'A' properties as per the registered sale deed dated 08.07.1970. Since the date of purchase, the 7th defendant has been in possession and enjoyment of the said property and got the mutation entry changed in his name. After lapse of 29 years, the plaintiff had filed a suit seeking for partition without seeking to set aside the sale deed dated 3.8.1970. No relief has been sought in the suit against him. Hence, he did not contest the suit. Within a period of 12 years, the plaintiff ought to have filed the suit under Article 109 of the Limitation Act. The suit filed by the plaintiff is barred by limitation. The finding of the Trial Court on issue No.4 is erroneous in law. No document has been produced before the Trial Court to show that the plaintiff is the son of Ankegowda and the brother of Gurumurthy Gowda. Further, the Trial Court has also not taken into consideration the previous partition between the plaintiff as well as Gurumurthy Gowda and sought for allowing the appeal by setting aside the judgment and decree passed by the Trial Court.
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16. The appellants also relied upon the judgments reported in 2008 AIR SCW 3429 (BABUSINGH AND OTHERS v/s RAM SAHAY @ RAM SINGH) ILR 2008 KAR 1840 (PARAPPA AND OTHERS v/s BHEEMAPPA AND OTHERS); and AIR 1997 SC 1686 (SUNDER DAS AND OTHERS v/s GAJANANA RAO AND OTHERS).
17. On the other hand, Sri.K.V.Narasimhan, learned counsel appearing for the respondents argued in support of the judgment and decree passed by the Trial Court and contended that the joint family properties were alienated by one of the co-owners without the knowledge and permission of the other co-owners. The husband of the appellant in RFA 1763/2005 is not the Kartha of the family. He cannot alienate the joint family properties. Further, the legislature has not prescribed period of limitation for filing a suit for partition. The suit for partition can be filed at any time when one co- owner is not willing to live with another co-owner. Further, the first appellant herself has admitted in her cross-examination that Ankamma sold 30 guntas of land situated at Seethapura village in favour of Papegowda and given the house property in favour of the plaintiff. In view of the registered Will dated 16.01.1975, the 18 plaintiff became the absolute owner after the death of said Ankamma. The husband of the first appellant cannot alienate the said property in favour of the 7th defendant. The plaintiff in order to prove his case got examined himself and also examined P.W.2 who is the Sub-Registrar of Mysore. Since both the scribe and testator have died, nobody has disputed the said Will. In fact the first appellant in her cross-examination has admitted the Will. The defendants 6 and 7 have not contested the suit, hence it is not open to them to raise a contention that the Will is not proved. Hence, sought for dismissal of both the appeals upholding the judgment and decree passed by the Trial Court.
18. After considering the arguments addressed by the learned counsel for the parties, the only point that arises for consideration in this appeal is as to Whether the appellants have made out a case to interfere with the order passed by the Trial Court and whether there is perversity in the order passed by the Trial Court.?
19. The records clearly disclose that the plaintiff is the son of Ankegowda through his second wife Chikkathayamma. After the 19 death of the first wife, i.e. the mother of Gurumurthy Gowda, his father married Chikkathayamma. The specific case of the plaintiff is that his father died when he was one year old. His mother Chikkathayamma got remarried, he was brought up and reared by his paternal aunt by name Ankamma. His brother Gurumurthy Gowda had given some lands for cultivation for his survival. There is no partition of the family properties by metes and bounds. His fostered mother bequeathed the house property situated at Seethapura village as per the registered Will dated 16.01.1975. However, his brother Gurumurthy Gowda sold item No.2(a) of the joint family properties in favour of the 7th defendant on 3-8-1970 without the knowledge and permission of the plaintiff and alienated 'B' schedule property in favour of the 6th defendant as per the registered sale deed dated 22-11-1993 though he has no right over the same. In the written statement, the defendants 1 to 3 and 5 denied the relationship and also execution of the Will, subsequently they admitted that some portion of the properties was given to the plaintiff for his maintenance as per the partition deed dated 10-4-1985. The said document has not been produced before the court. Further in the cross-examination, the first defendant admitted the relationship with the plaintiff and stated that he is the son of the second wife of her 20 father-in-law and he was brought up and reared by Ankamma and she has bequeathed the house property situated at Seethapura Village in favour of the plaintiff. Based on the oral and documentary evidence, the Trial Court held that the plaintiff is the son of second wife of Ankegowda. Further, Ankamma had executed registered Will dated 16-1-1975 bequeathing 'B' schedule property in favour of the plaintiff and he is entitled for the half share in the 'A' schedule properties and the 'B' schedule property. I find that there is no infirmity or irregularity in the judgment and decree passed by the Trial Court.
20. There is no limitation prescribed under the Act for seeking partition of the property. The records clearly disclose that the plaintiff is the co-owner of the properties of Ankegowda. Without the knowledge and permission of the other co-owners, the first son of Ankegowda alienated one of the properties in favour of the 7th defendant on 3-8-1970 and 'B' schedule property which was gifted in favour of the plaintiff to the 6th defendant on 22.11.1993 for Rs.6,000/-. Within six years of the second sale, the plaintiff has filed a suit for possession, hence the suit filed by the plaintiff is maintainable. Further, the first defendant who is the wife of the 21 brother of the plaintiff herself has admitted the execution of the Will by Ankamma in respect of 'B' schedule property. Hence, the question of proving the Will by examining the Scribe and attesting witness does not arise, since both are dead. The judgments relied upon by the appellants reported in ILR 2008 KAR 1840 and 2008 AIR SCW 3429 cited supra are not applicable to the facts of the case. Since Gurumurthy Gowda is not the Karta or the Manager of the joint family and he is only the co-owner, he cannot alienate the joint family properties without permission of other co-owners. Since the documents executed by Gurumurthy Gowda are void documents, the plaintiff need not seek for setting aside the sale deed in view of the judgment reported in (2002) 1 SCC 178 in the case of MADHEGOWDA (D) BY LRS v/s ANKEGOWDA (D) BY LRS and also another judgment in 2007(3) CTC 718 in the case of BRAMMAGIRI v/s MINOR SIVASUBRAMANIAM AND AYYASAMY.
21. The appellants have not made out a case to interfere with the judgment and decree passed by the Trial Court. The reasoning of the Trial Court is based on the evidence on record and the same is not liable to be interfered by this court. Accordingly, 22 both the appeals are dismissed confirming the judgment and decree passed by the Trial Court.
Sd/-
JUDGE mpk/-*