Karnataka High Court
B M Narayanaswamy vs D Ramaiah on 20 April, 2010
Bench: N.Kumar, K.Govindarajulu
E RFA 1282/2005
N THE HIGH COURT OE KARNATAKA, BANGALORE1 '»G.
DATED THi8 THE 20?" DAY OF APRIL 20:
PRESENT:
THE RONBLE AAR.JusTtcE§iN.T<TLJ;\;2AR
AND.' A '
THE HON'BLE MRJUSTICE 'K.'£?;'CVVlN[5A'R.'}§«JEJLLJ;
Reqular First Apgééi NO: *§282,x_2d05T (Par)
BETWEEN:-- 'V
SrE.B M NARAYAN/3\S§;'\iAiv!,Y".
S/O OOOOA MtJNaYT.ARR?.A " 'T
AGED ABOUT 65 YEARS '
R/A BETTA' H'ALA'8UR,"?-:
JALA HOB:L_:, ._ A A
BANGALORE NORTH«TALuK=._
- K! .../APPELLANT
_(By Sari; RAO, Advocate)
1 D._VRA'Iv'%A!AH::""'
'B/O DVODQ/-'X l\/iUNiYAPPA
AGEDA't':3'OUT 55 YEARS
R/A".NG.1570,EWSlHSTAGE
* =Tr€.QlJSIN(3 BOARD COLONY,
A - .YE--LAHA§\%KA UPA NAGAR
BANGALORE -- 560 064.
-jig7R2.TO R5 .--___SEERVED)
3 RF'/A 1282/2005
2 B M BABRANNA
S/O OOBOA E\/IUNIYAPPA
AGED ABOUT 73 YEARS
R7A BETTA HALASUR
JALA HOBLI, L
BANGALORE NORTH TALUK.
3 HANUMAKKA
W/O N.E.KR!S|-ENAPPA
AGED ABOUT 77 YEARS
C/O RAMA ANJANI
NO? 05, NAGAVARA
ARABIC COLLEGE POST_
O BANGALORE -- 560 0457 A
4 KBMRAMMAR.;G . ;,9»fA)_ 5
W/O H.S.L4AE--§S|€i7I\/1!.NARASJMHAVELAI-:
AGED ABOU',F~.7 7""s*~EARj:3_ A
R/A HESSAR)A£%_HATTA ~
BANGA'LORE - 56U"088.AV"'
5 GOw'RAM_MA.
W/O H.AVNJANAf9P}'\A' .
AGED ABOUT 75';.YEAF%'3
R'/A.TAARABA'F7¢-AAVHALLVi
. 'A .....
V 'B_Al\'GALQ4F?'a'E NORTH TALUK ~ 560 089.
RESPONDEENTS
(By SRBALO ./IXSSOCIATES FOR R1;
-r RFA 1282/2005
defendant, B.i\/ihéarayanaswarrty the second defendant and
Dfiarhaiah the plaintiff. He left behind three daughters
defendants 3 to 5, Smt.Hanumakka, S:nt.Kerhparhm.a"V.,a'h_d'a_
Smt.Gowramma.
The case of the plaintiff is that, the echeciittlelfy"ptdpeitt.i'eie
are the ancestral properties of the pliaiyntiitf"and"dvefenyndiantsf:11
After the death of the plaintiff's tat't~.e,jr,ti.,tyhe fi'r-st, d'eiertda.ni"'i3ei"ng
the eldest brother was ioo?<i--iU,Q aftpe-rtttthe'-_ioint farnily'v--.proEperties
and he is the manager/%<arth'a of *fat1aii"y.consisting of
himself, the plainti_f.f.and-.thei,'seeQ:r.t:o u'Because of the
misunderst-andirtgiwi'pe,t--w:een"tihVe»r--.patites, the plaintiff requested
the elder brother to' effectifltthiel partition of the ,iOirl§ family
_Vpropertie{s." alnstea'd.._i_ofeffecting partition, the first defendant
V'A'c_aL,ls€d.":a iefigai .n:ot.ice dated 19.02.1996 informing his readiness
and ~wi'ii.l.i.ngn'es_s.__to1,e'ffect partition of the joint family properties
thy metes avndbxounds. The plaintiff was ready to have the
i"}['t-'.'}xD'{_-5-§"7[':,'/' ggartitégned 3-lgutrev
, W .. . .. .. ,_r, the first defendant trtforrried the
--p,l_ai'nt:iff that the second defendant is not willing te co--operate
caused an antenable repty to his notice. The second
L/.
' being eldest in the tamity, he wanted to amicabty settée the
3/..
"de»fe'itr;iant efntered a
5 R?A 1282/2005
defendant has taken a contention that there is already a
partition among the brothers. The second defendant caused'»a.
notice dated 01.03.1996 to the ptaintiff through
alleging that the plaintiff has executed an agreen:.e.r,tt_i'e.f i
respect of the properties shown
consideration of i~'%s.22.000/~ on tG'.0§.t9éE3'7_v.and dernandéed
plaintiff to execute the sate deed. _p|aint-itf,.44.iV':nt reply
denying those allegations. platntVi_ff,i'.c'a.t_§eAd'aiipon the second
defendant to send a,photos.tat.:.cjopy.of the.a'g~'ri.ee"ineitt of sate
dated 10.06.1987 th.eJseco~nVd'.de'f'e'ndant. However,
no such copy Therefore. the plaintiff was
constrained tloufigtet tVhe"--sui't:'lor:"partition and separate possession
of his sl_iareain the" p_laiet schedule property. Though, original
'suit was filvedyonlyvagainst the two btothers. subsequently, he
impieaded"'the'_~--da§;Jg"hters i.e., his sisters also as parties as
cfefenda"nts"----V3.. "<~tl.V'and 5. After setvice of summons, the first
,. ..._. _ppearance and filed his writtee statement.
.-.
Hefladfrtifitted the relationship between the parties. He pleaded
'plaivnltiff put the second defendant in possession of the entire
k//W
6 RFA E282/2005
matter. However, the second defendant set up a parti_t_.i_on
earlier about 35 years back and he was not prepared for
partition. Therefore, he pleaded that he has no obtec-tiortvfortihe A '
suit being decreed as prayed tor. lt is..rthe..sgecpnldvi'defendant
who has tiled the detailed written sta't'ern7en't'lv cornestiyn-gt
claim of the plaintiff. He has p'lejadedt._;vt'ha't,'Via
Dartition took place in the ,fa.rrti|yg..abel§i\:t. 35_year«s'tb.actxE since
then, they are living separately' properties
which have fallertito-itjhegir therefore the
suit filed for ,.Thougi"t he admitted
the relatio:n_shi_p« denied that the schedule
properties arefoint familylgpropeirtiiies. Hts specific case is that,
the }oint_tarrtirl_v is sev..ered and all the schedule properties have
Vnitzieerrpaljrtitionediamongst members/parties to the suit 35 years
bac'l«~.ins.a F5a:n'p.ha'y,at.h through a oral partition. All the parties
were put in"--Vseparate possession of their respective share on
-4'!
4-'"y,_itse"lf. After the partition, the platrtttff switched over to
lixr.e Bangalore and is residing there. At that point of time? the
7 Rf-'A 3282/2005
properties of the plaintiff, and eversince then the second
defendant is in continuous possession. Thereafter; the piaintiff
executed an agreement dated 10.08.1987 to sell the
failen to his share for vaiuabie consideration of RsfV22?',"QOOZf';~ To T'
avoid execution of the safe deed, the p|a:iA'ntii?f"«_and--.t.h'e,first__if
defendant coliuding together created a"----st'ory filed' this V
friveicus suit and therefore he sou_ci'ht.V:.for _disrrii~s_s'ai -of the suit.
The daughters did not fiie a'ii:y"writt_efn
On the aforesaid plealdipnigs, has framed
the fcilowing
'ii if 3 vV\/Vhetfier'v«t:h'e.:'::'piaintiff proves that the suit
s.chedu'iie"pr:operties are ancestral and joint
farnily properties of the parties to this suit'?
iV'i.rVi:'W_hether the second defendant proves that
if 'there was already a partition in the joint
farniiy about 35 years back and parties to
this suit were put in possession of their
respective shares?
3 RFA 1282/2005
iii) Whether the second defendant proves
he has been in possession and enjoy.:ré'etfi't*
the properties fallen to the sharejol plaVi'r'.tifif-....'_"'1 "
under an agreement___of»_sale_~'sai"d--.'t:ohave
been executed by their u'--..pl'a.i.ntif4f'~.'-...onw..,:.E
10.06.1987?
iv) Whether the 2" defieindaxnt prc~.ies thavtgthis is
colletsive V i i If
v) Whether t.his.'_si.,iit' v--.is:r._ba'd._ foir1.'.'rion~joir2der of
vi) V -V..V.V\it'li'etvhe: entitled for the relief
pa?rtitiOn'«~..and separation of his alleged
' :/3'"~.shaire..?'i'*-
. . vii) W'nat"de'cree.or order?
A.pIainti'if ssss --ah order to substantiate his claim
ex'a_rri'ine'd..hi'n:isel'f..as:..PW--l produced is documents which are
' V.,.marked__4'as EV><.s.l§s.lri:;to W5. On behalf of the defendant, second
_._i.i'.j'jv»-'defendant"has been examined as DW--1 and has examined
if 'tom.wit_nj'e"sses and got marked one document. To prove the
l/
if
10 RFA 1282/2805
there was a partition in the family between the brothers _an'<*j-~.,g
after the said partition, the plaintiff left the village and
not cultivated the land. His evidence that he was
land along with his brothers is not
evidence on record. That apart,,>he haslie-ntered--".l.i.nto"aria"
agreement of sale, a portion of the which falrennto
his share at the partition on recitalsulin the
agreement clearly makes it clear_ fell to
his share at a lTr';_Ei'|f0o'u:ttv'":committed a serious
error in ignoring and coming to
a conclusioisvg that by the defendantis
not establishedand the_rief}o're:_,4"ih'e'«p'laintifi is entitled to decree.
Efierjvilcontra, learned counsel for the plaintiff
thatltVh.e..'--:"suit filed by the plaintiff for specific
is'Vperform'a~--nce__"ofiiagreement of sale dated 10.06.1987, after
came to be dismissed on 29.06.1987. Appeal preferred
ag_ai"nVst"tl1e said judgement and decree in Ft.A.l\lo.60/1987 is
it ':ai's-c-~dismissed for r2on--prosecution on 15.12.2009 and in the
H RFA 1282/2805
said proceedings, a finding is recorded that the plaintiff has not
executed any agreement of sale dated 10.06.1987. Howeye»~r.,'_:'i~.V_
he submitted, till today, the khatha of the property stand$:s..i'n"'t'hje.J --'--
name of the first defendant who is the eldest me'm'b'er:'_~of'"'tahg_ '4
family and infact he issued a notice to effect
schedule properties are cultivated by the joint fami|yi"m'ernb.eVrs..3
if, for the purpose of conyeniencea.Wtvhe"first'.'andsecond
defendants are cultivating theiilend.sée_pa.r'ate'iyV.':"there is no proof
of partition. in these' ':Court was
justified in decreeii*'.\c:i"theiszgvit"of:_t_he~.V..oiai"nti'ff.
6. let §ight""..:of,_ specific facts and rival
contention;s,"'the point..tV_h'at arise for consideration in this appeal
Whéfiw the finding of the Trial Court that
fhe"p=.an'i'{i'on set up by the second defendant is not
my ",oi'oi/ed," calls for an y rnrerferencse T?
3 RFA 1282/2005
?'.~ The retatiohship between the parties is
dispute. it is also not ih dispute that the schedule J i»
are alt ancestral properties} After theydeath""ov*f--.'.:'Dyod:da.V
l\/luniyappa, his three sons constituted a Joint;Hinrdu'Fam:i'ty' ti
continued to cultivate and enjoy'lV_the.V schedule' pr'op._e4rties..;l
During the lifetime, the mt,:tati_on in was
in the name of Dodda |\/iuniya"ppa.--. the mutation
was changed in the vname of defendant
the eldest soh tt i:svnot.'i'nVV'dispute that, as
is clear froth t_heAl"Vret;{ords. prtotdtlced' by the piaihtiff, as per
Exs.F'5 to Pléand that the mutation stands
in the name of B.M';B.acVhanvria or in the joint names of all the
three 't3«r_othersA,. item Nos. 1 to 9 are lahded properties. Item
Note. i's..._tVhe"'ho_use~l'.p'roperty. it is also not in dispute that even
be-fore rniairriaige, the ptaintiff left the viltage in search of
IV€Ytjt'p§0}"i't1f3fltVNtO Bangalore and was employed at Bangalore.
Thelupiainltifl asserts that the first defendant performed his
' 'inyarrilage. they continued to be members of a joiht family. As
xi
RFA 1282/2005
there was no partition in the family, the other members of tlie
family who lived in the village cultivated the schedegl.e__"lab'd'j'~g.,\".,,
Merely because one of the members of the joint
account of his employment leaves the vlfilageilan.d7se'lties'id_ovvn7
in a City, it is not a proof of partition, lt is'-«not. l.ti"lCOg{'T.";.m'A.(j)"i". if
persons who are settled down i'n*:.Ban_galo"reV_ of
employment and visit their r'iative care their
lands. lt is not necessary cultivate
the land. BecauseA':.d:re_fendarit_s'.";l to be
agriculturists, they \'li'iVla'gie and there was no
partition in co,,bt~i'n__ued.--'toV'cultivate the agricultural
lands. lf rea|ly..ga ipa'r'ti.tilo'njas4"pleaded by the defendant is taken
place abou't 35 yuears; back," the mutation entries ought to have
Vnbeein' name of the respective sharers in the said
partilior1_,Vyin"tbe~i.,narne"of persons to whom properties have fallen
in the said.-__'parvti'tion. lf, for a period of 35 years, a partition
.in__the"'family is not given effect, to not acted upon, at any
..ria.te'=riot: recognised by the Governmental authorities, it is
"difficult to believe the oral partition pleaded by one of the family
.3 RFA 1282/2005
entire consideration has been paid. Not a scrap of paper"--i,s
produced before the Court to show payment of
the plaintiffunder the agreement of sale or otherwgiseor hf_e*~w'as'
in possession of the said amount at anylhipoiint t'i«me} J
evidence which the second defendant 'has'v--chosert.to °plaice"= C
before the Court is the oral evidenceof' the vi'Il~agers' who have
said to have been preseritpat the the partition is
effected. Having regard to agewof ti'i'o.s'e'»~1per*soes aed the
fact that partitioni_"had~'htaf<eéri place heal'-l'y"v3--5i years back, the
said evidence as'si'staince: 'i"ri"l'proviVng the said factum of
the oral partitiori".7?'._~fl_he.VTria'I"~«.'Court has appreciated the oral
evidence on record tand'A'l1as~«.._rec'o{ded a finding that the said
evidencedotctnot .esȤa_bli'sh the 'plea of partition.
"'v4:'l't~._:is.C'Vv'v~s'ettled law that this Court exercising
j_urisdict--ion.-__unde"r Section 96 of Code of Civil Procedure, 1908
i,"t',"'in':Vfirspappeal, being final Court of facts, should be slow and
'_'_ltnte:feé"e"with a finding of fact wherein the finding of the Trial
C f:Cou'rt is purely based on oral evidence, when the Trial Court
N1 RFA 1282/2035
had the advantage of observing the demeanor of the V.
when it records a finding of fact. in that view of__tVhe:.niia'tte4r,'% '
when the plea of oral partition is soeght «.Vpl<ov~edi.:_iby_uo_ra'|V"h
evidence, when the Trial Court on ap_precia---tgion. of evgioence' ha:s'" V
held that no oral partition had taken ear|ie'i~.fi,w'e do
any perversity in the said f': interference.
That apart, the documentary__ev'idenceiiin~"'thisi~:'._'cia«se negatives
the case of the orat partition.
in that view of 'g./¢:j'ui:i"~.§£;('jmmitted no itlegality
in rejectéi'ig.:the!oléa'._of_gt.he'o--ra'l"~partiti_'oVn"arid accepting the case
of the plaintiff théat thei..pr'epe:_rtie':é,'were ancestral properties and
father otgrze piaintif-.'» and"the' defendants acquired it in the family
iilpairtieoni; ztieiijtplgiiiiigiri is not entitled for 1/3*' share but to 7/24"'
shate."-i'jfl"%he"vlear_ne.dcounsel for the respondent also brought to
'our notice ta~t1'at~the suit filed by the second defendant against 4H_:""'.the.:'ptaiuntlfttor specific performance was dismissed and appeal was"al'so'dismissed. In that view of the matter, we do not see t/ " RFA 1282/2005 any justification in interfering with the judgement of V. Court. Accordingly, Appeai is dismissed.