Karnataka High Court
Devamma vs Rathnamma on 17 April, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 17TH DAY OF APRIL 2013
BEFORE:
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL NO.1213 OF 2005
CONNECTED WITH
REGULAR FIRST APPEAL NO.1239 OF 2005
RFA CROSS OBJECTION NO.46 OF 2005
IN R.F.A.No.1213 of 2005
BETWEEN:
1. Smt. Devamma,
Wife of Late Driver Devaiah,
Major,
2. Ramu,
Son of Driver Devaiah,
Major,
Both are resident of
Krishnarajasagara,
Belagola Hobli,
Sriranga Patna Taluk - 571 438,
Mysore District.
2
3. Savithramma,
Wife of K.J. Raju,
Major,
Resident of Kariganahalli,
Kikkeri Hobli,
K.R.Pet Taluk - 771 423,
Mandya District.
4. Smt. Jayamma,
Since dead by her
Legal representatives are
4(1) Thammaiah,
Son of Kullaiah,
Major,
Residing at Gangenahalli,
Kikkeri Hobli,
Krishnarajpet Taluk,
Mandya District.
4(2) Suresh,
Son of Thammaiah,
Aged 35 years,
4(3) Chandrakala,
Daughter of Thammaiah,
Wife of Shivaramu,
Aged 25 years,
Both are residing at
Mandhagere,
Akke Hebbal Hobli,
K.R.Pet Taluk,
Mandya District.
3
[appellant Nos. 4(1) to (3) are
impleaded vide order
dated 29.09.2005] ...APPELLANTS
(By Shri. M.R. Rajagopal, Advocate )
AND:
1. Rathnamma,
Wife of Raju,
Major,
2. Rajeshwari,
Wife of Narasimhaiah,
Major,
Both are residents of
Kariganahalli Village,
Kikkeri Hobli,
K.R.Pet Taluk,
Mandya District.
PIN - 571 423.
3. Rajegowda,
Son of Shivegowda,
Major,
Resident of Ramanahalli,
Kikkeri Hobli,
K.R.Pet Taluk,
Mandya District.
PIN - 571 423.
4. Ninganaika,
Son of Kenganaika,
4
Major,
Resident of Agasarahalli Village,
Krishnarajapet Taluk,
Mandya District.
PIN - 571 426. ...RESPONDENTS
(By Shri. K.V. Narasimhan, Advocate for Respondent Nos. 1
and 2)
*****
This Regular First Appeal is filed under section 96 of
Code of Civil Procedure, 1908 with a prayer to against the
judgment and decree dated 16.2.2005 passed in
O.S.No.28/1999 on the file of the Principal Civil Judge (Sr.Dn.)
and Judicial Magistrate First Class, Srirangapatna, partly
decreeing the suit filed by the respondents No.1 and 2 herein
for partition and separate possession.
IN R.F.A.No.1239 OF 2005
BETWEEN:
1. Smt. Devamma,
Wife of Late Driver Devaiah,
Major,
2. Ramu, Son of Driver Devaiah,
Major,
Both are resident of
Krishnarajasagara,
Belagola Hobli,
Sriranga Patna Taluk - 571 438,
Mysore District. ...APPELLANTS
(By Shri. M.R. Rajagopal, Advocate)
5
AND:
1. Rathnamma,
Wife of Raju,
Major,
Resident of
Kariganahalli Village,
Kikkeri Hobli,
K.R.Pet Taluk,
Mandya District.
PIN - 571 423.
2. Rajeshwari,
Wife of Narasimhaiah,
Major,
3. Narasimhaiah,
c/o. Puttaiah,
major,
respondent nos. 2 and 3 are
resident of Marigudi Bheedhi,
K.R.Pete Town,
K.R.Pete,
Mandya District.
PIN - 571426. ...RESPONDENTS
(By Shri. K.V. Narasimhan, Advocate )
*****
This Regular First Appeal is filed under section 96 of
Code of Civil Procedure, 1908 with a prayer to against the
judgment and decree dated 16.2.2005 passed in
6
O.S.No.133/1998 on the file of the Principal Civil Judge
(Sr.Dn.) and Judicial Magistrate First Class, Srirangapatna,
dismissing the suit for declaration and permanent injunction.
IN RFA CROSS OBJECTION NO.46/2005
BETWEEN:
1. Smt. Rathnamma,
Wife of Late Raju,
Aged 48 years,
2. Smt. Rajeshwari,
Wife of Sri. Narasimhaiah,
Aged 29 years,
Both are residents of
Kariganahally Village,
Kikkeri Hobli,
K.R.Pet,
Mandya - 571 438. ...CROSS OBJECTORS
(By Shri. K.V. Narasimhan, Advocate)
AND:
1. Smt. Devamma,
Wife of Late Driver Devaiah,
Aged about 70 years,
Resident of Krishnaraja Sagara,
Belagola Hobli,
Srirangapatna Taluk,
Mandya - 571 438.
2. Sri. Ramu,
7
Son of Late Driver Devaiah,
Aged about 52 years,
Resident of Krishnaraja Sagara,
Belagola Hobli,
Srirangapatna Taluk
Mandya - 571 438.
3. Smt. Savithramma,
Wife of Late K.T.Raju,
Aged about 55 years,
Kariganahally Village,
Kikkeri Hobli,
K.R.Pet,
Mandya - 571 438.
4. Smt. Jayamma,
Since dead by legal representatives
a) Sri. Thammaiah,
son of Kullaiah,
aged about 60 years,
b) Sri. Suresh,
Son of Thimmaiah,
Aged about 40 years,
c) Smt. Chandrakala,
daughter of Thammaiah,
aged about 30 years,
all are resident of Gangenahally,
Kikkeri Hobli, K.R.Pet,
Manyda - 571 438.
[Smt. Jayamma died on
8
14.04.2005 her legal representative
Have been brought on record in
RFA 1213/2005 to which this
Cross-objection is filed
On 29.9.2005]
5. Sri. Rajegowda,
Son of Ningegowda,
Aged about 60 years,
Resident of Ramanahally Village,
Kikkeri Hobli,
K.R.Pet,
Mandya - 571 438.
6. Sri. Ninganaika,
Son of Kenganaika,
Aged about 61 years,
Resident of Agasarahalli Village,
K.R.Pet,
Mandya - 571 438. ..RESPONDENTS
(By Shri. M.R. Rajagopal, Advocate for legal representatives of
deceased Respondent Nos.4 (a to c) and Respondent Nos. 1 to
3)
*****
This RFA Cross Objection is filed in RFA 1213/2005
under Order 41 Rule 22(1) of Code of Civil Procedure, 1908,
against the judgment and decree dated 16.2.2005 passed in
O.S.No.28/1999 on the file of the Principal Civil Judge
(Sr.Dn.), and Judicial Magistrate First Class, Srirangapatna,
partly decreeing the suit filed by the respondents No.1 and 2
herein for partition and separate possession.
9
These appeals and the Cross-Objection, having been
heard and reserved on 22.3.2013 and coming on for
Pronouncement of Orders this day, the Court delivered the
following:-
JUDGMENT
The appellants in the appeal in R.F.A.No.1213/2005, were the defendant Nos.1 to 4 in the suit bearing O.S.No.28/1999. This suit was decided by the trial court along with civil suits O.S.No.133 and O.S.No.135 of 1998, by a common judgment .
2. The plaintiff Nos.1 and 2 in O.S.No.28/1999, have filed cross objections in the above appeal in R.F.A.Crob.46/2005.
The plaintiffs in O.S.No.133/1998 have filed the appeal in R.F.A.No.1239 /2005.
3. It was the case of the plaintiffs in O.S.No.28 /1999 that they are the daughter and grand daughter, respectively, of one Devaiah. The Genealogy of the plaintiffs was as under.
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Devaiah (Dead)
-Devamma - I Defendant
Raju Ramu Jayamma Savitramma
-Ratnamma II-Defendant III-Defendant IV-Defendant
(I- Plaintiff)
Rajeswari
(II - Plaintiff)
Devaiah is said to have died about 11 years prior to the suit. The plaintiffs and the defendants had succeeded to his estate. The eldest son of Devaiah, the husband of the first plaintiff had pre-deceased Devaiah, he having died about 20 years prior to the suit. It transpires Devaiah had acquired properties in the name of his wife Devamma.
The plaintiffs were said to have been living in Krishnarajasagara and the second plaintiff is said to have received her education there. It is claimed that the plaintiffs 11 and the defendants were living jointly and were enjoying the suit schedule properties jointly. After the marriage of the second plaintiff, the first plaintiff is said to have moved along with her to Kariganahalli and they are both residing there.
It is claimed that the suit schedule properties had been acquired by the joint effort of the male members of the family. It is the case of the first plaintiff that as a widow she had always remained under the influence of the first defendant, her mother- in-law and the second defendant her brother-in-law. It is claimed that she had thus been compelled to affix her signature to many documents without being told about the contents thereto nor had she received any benefit under the same. It is only in retrospect, as on 6-10-1998, that she had learnt that she had purportedly joined defendants no.1 and 2 in having sold the lands at Kariganahalli, under a sale deed dated 9-3-1991. It was asserted that plaintiff no.1 had attested the said deed. However, she did not have the knowledge of any such 12 execution or the intent of any such document. Plaintiff no.2 was not a party to the transaction. It was therefore contended that the said sale transaction, said to have been made in favour of the fourth defendant was claimed as not binding the plaintiffs.
The plaintiffs having demanded partition and separate possession of their share of the suit properties and the same having been negated, the plaintiffs had issued a legal notice and it is by the reply received as on 6-10-1998 that the plaintiffs learnt of the sale transaction. It is thereafter that defendant no.1 is said to have filed the suit in O.S.no.133 /1998 in respect of suit schedule items 1 to 4 and the fourth defendant had filed the suit in O.S.no.135 / 1998 in respect of suit schedule items 5 to 7, against the plaintiffs for declaratory and injunctory reliefs. Hence the plaintiffs had filed the suit in O.S.no.28 /1999, seeking a 6/15th share in the suit properties. 13
It was contended that the defendant no.1 & no.4 had no independent source of income to acquire the properties. The acquisition of properties was only with the income of the joint properties. It was also contended that the documents created were not genuine and were not binding on the plaintiffs.
As defendants 5 & 6 had claimed to have purchased portions of the suit schedule properties they had been made parties to the suit. It was contended that the alienations in their favour did not bind the plaintiffs.
The suit was contested by defendants 1 to 4. Defendants 5 & 6 had remained ex-parte. Defendants 1 & 2 were the plaintiffs in O.S.no.133 / 1998 . In their written statement they admitted the relationship with the plaintiffs. It was denied that the plaintiffs formed part of a joint family.
It was claimed that the first defendant came from a very affluent family and had been provided with jewellery and other 14 property on her marriage. She had purchased suit schedule items 1 to 4 out of funds raised by her, under sale deeds dated 24-6-1959, 4-7-1960, 25-7-1960 & 22-10-1960. She claimed them as her absolute properties and as Stridhana properties. It was claimed that defendant no.2 was actively assisting her in the cultivation of the properties and the khatha in respect of some of the properties were changed in his name by consent.
It was further contended that the suit items 4 (a) and 10 to 13 were non-existent properties. The first defendant therefore sought for dismissal of the suit.
Incidentally, the first defendant having filed a suit in respect of the very suit items 1 to 4, in O.S.no.133 / 1998 prayed for a declaration in her favour and for injunctory reliefs. The third and fourth defendant had filed an unsigned written statement, however the trial court had taken the suit filed by the fourth defendant in O.S.no.135 / 1998 into account in considering the defence. It was the case of the fourth defendant that she had purchased suit items 5 and 6 from defendants 1 15 and 2 out of her own funds, under a sale deed dated 9-3-1991. She also claimed that suit item no. 7 was purchased by her from one Krishnappa under a sale deed dated 2-5-1992. It was hence asserted that the said items of property were her self acquired properties and that the plaintiffs had no right what so ever over the same. She had in her suit in O.S.no.135 / 1998 sought for a declaration of her title and for injunctory reliefs against the plaintiffs.
The trial court had framed the following issues in each of the suits :
O.S.No.28/1999:
1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of plaintiff and defendants 1 to 4 and acquired by joint labour of all male members of the joint family and thrown to common hotchpot?
2. Whether the plaintiff proves that, the defendants 1 and 2 without the knowledge of the 1st plaintiff obtained her signature to the sale deed dated 9.3.1991 executed in favour of the 4th defendant?16
3. Whether the plaintiff proves that, sale deed executed in favour of defendants 5 and 6 are not binding on the share of plaintiff?
4. Whether the plaintiff is entitled to 6/15th share in the suit schedule properties?
5. What order or decree?
O.S.No.133/1998:
1. Whether the plaintiffs prove that the plaintiff No.1 is the absolute owner and in possession of the suit schedule property on the date of suit?
2. Whether the plaintiffs further prove the alleged interference of obstruction?
3. To what order or Decree?
O.S.No.135 of 1998:
1. Whether the plaintiff proves that she is the owner and possession of plaint schedule properties as per the registered sale deed dated 9.3.2001 and 2.5.1992?
2. Whether the defendants prove that, they are the co-
owners in respect of the suit schedule properties? 17
3. Whether the plaintiff proves interference from the defendants?
4. Whether the defendants prove that this court has no pecuniary jurisdiction to try the suit?
5. Whether the plaintiff is entitled to the reliefs claimed in the suit?
6. What order or decree?"
The trial court has then addressed the above issues in its common judgement. The trial court has negated the contention of defendant no.1 that suit items 1 to 4 were her self- acquired properties. The same were held to be properties in which the plaintiffs acquired a share by succession.
In so far as suit items 5 to 7 held by Defendant no.4 is concerned, the trial court has held that the plaintiffs were not bound by the sale transactions in favour of the said defendant, to the extent of their share, in respect of items 5 & 6. 18
The trial court has declared that the plaintiffs had proved that suit items 1 to 4 (a), 5,6,8 and 9 were joint family properties of the plaintiffs and defendants 1 to 4 and were entitled to a 6 /15th share in those items of land (On the basis of a notional partition on the death of Devaiah the propositus - (1/3rd + 1/5th of 1/3rd = 6/15th )
4. In the light of the findings in O.S.no.28 / 1999, the trial court has answered the issues raised in the connected suits consistently with those findings. The suit in O.S.no.28 /1999 was partly decreed as aforesaid. The suit in O.S.no.133 /1998 was dismissed. The suit in O.S.no.135 /1998 was decreed in part holding that Savithramma, the plaintiff therein, who was the fourth defendant in O.S.no.28 /1999 was entitled to item 7 of the suit property in O.S.no.28 /1999.
It is contended on behalf of the appellants in R.F.A.no.1213/2005, who were Defendants 1 to 4 in O.S.no.28/1999, (Defendant no.3 having died is represented by 19 her legal representatives) that the court below has proceeded on the presumption that the suit properties were coparcenary properties, secondly, the burden of establishing the exclusive ownership of the respective properties claimed by the defendants was placed on them and then proceeded to hold that the defendants had not adduced evidence of the independent source of income and had decreed the suit. This was in the face of the fact that there was no pleading on behalf of the plaintiffs that the properties were acquired by Devaiah or the first defendant, Devamma were coparcenary properties. There was no evidence forthcoming that any of the properties were existing during the life time of Devaiah or that the properties were acquired from the income generated from such properties.
It is contended that Devaiah was admittedly a Class IV employee of the State Government and was not possessed of assets or income, on the basis of which it could be presumed 20 that the properties had been acquired, with funds provided by him, in the name of the first defendant.
It is pointed out that the witness for the plaintiffs was plaintiff no.2, having regard to her age, it is clear that she would not have been born at the time that the lands in question had been purchased by defendant no.1. She was therefore incompetent to speak of the actual income of the family . Nor was she in a position to assert that the property had been purchased by the first defendant with the funds provided by Devaiah, purportedly on account of the fact that he was a government employee and sought to avoid any queries by his employer of such acquisitions.
It is contended that the first plaintiff having admitted the receipt of Rs.8,000/-, under Exhibit P-11, the court below has glossed over the same. Plaintiff no.1 could not approbate and reprobate, in denying that she had not received any benefit in the sale of items 5 & 6 of the suit property.21
The sale transaction in favour of defendant no.4 , in respect of item no.5 & 6 of the suit properties, in O.S.no.28/1999, was of the year 1991 as also the sale transactions in favour of other third parties were also made many years prior to the suit. The said alienations not having been challenged and the source of income for the acquisition of the properties having been asserted and the same not having been rebutted - the trial court was not justified in arriving at conclusions that had no basis.
5. The grounds of appeal urged in RFA 1239 / 2005 are the same as in RFA 1213 / 2005.
The cross objections filed in RFA 1213 / 2005 do not raise any substantial ground for consideration.
The court below had rejected the claim of the plaintiffs in O.S.no.28 /1999, that suit items 10 to 13 belonged to the family and were available for partition. This finding cannot be said to 22 be without basis as the court below has referred to material evidence in arriving at this conclusion.
In so far as the claim of Defendants 1 & 2 to suit items 1 to 4 was concerned, the contention that defendant no.1 had her own source of income in acquiring the properties, as she came from an affluent maternal home, has not been proved by any material evidence on the other hand it was brought on record that the purchases were made of the said items of land during the life time of the husband of the first defendant and the sale consideration was admittedly paid through him , as admitted by defendant no.1 during her cross-examination. She had also admitted that she was one of three daughters to her father and that her sisters did not possess any property. There was also no evidence forthcoming to the effect that she came from an affluent family and was possessed of independent assets. The witnesses examined on her behalf, in her suit in O.S.no.133 /1998, in that respect also were not convincing. 23
In so far as the sale of items 5 & 6 of the suit properties in favour of the fourth defendant by defendant nos.1 & 2 is concerned, the court below has found that the sale is proved but however, as the plaintiffs were not parties to the transaction , it did not affect their share of the land and that it could not have been conveyed thereunder. The trial court has also rightly concluded that though the sale deed was of the year 1991, as the suit was for partition - any alienation which was not for a legal necessity would not bind the coparcener and it was not necessary to specifically challenge the sale.
In so far as the aspect of plaintiff no.1 having acknowledged the receipt of part of the sale consideration in respect of the alienation in favour of the fourth defendant is concerned, the court has disbelieved the document Exhibit -P11 as it inexplicably come from the possession of the defendants. This fortified the claim of the Plaintiff Rathnamma that she had been compelled to affix her signatures to documents by defendants 1 & 2 without revealing the contents thereof. 24
6. In the above background, the findings of the court below cannot be faulted and accordingly the judgment of the court below is affirmed. The appeals in RFA 1213 /2005, the cross-objections in RFA Crob 46 /2005 & RFA 1239 / 2005 are hereby dismissed. No costs.
Sd/-
JUDGE KS