Karnataka High Court
Sangayya S/O Kallayya Swami vs Prabhavati W/O Shivasharanayya Swami & ... on 14 March, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR SECOND APPEAL No. 7235 of 2013
Between:
Sangayya S/o Kallayya Swami,
Aged about 55 years,
Occ. Agriculture,
R/o Village Yelladgundi - 585 327.
Tq. Basavakalyan, Dist. Bidar
... Appellant
(By Sri.Shivakumar Kalloor, Advocate)
And:
1. Prabhavati W/o Shivasharnayya Swami
Aged about 65 years, Occ. Agriculture,
R/o Village Yelladgundi - 585 327.
2. Kasturbai W/o Siddayya Swami,
Aged about 63 years, Occ. Agriculture,
R/o village Urki,
Tq. Basavakalyan, Dist. Bidar - 585 419.
3. Bassayya S/o Kallayya Swami,
Aged about 60 years, Occ. Agriculture
R/o Village Yelladgundi - 585 327.
Tq. Basavakalyan, Dist. Bidar.
2
4. Mahadev S/o Kallayya Swami,
Aged about 50 years, Occ. Agriculture,
R/o Village Yelladgundi - 585 327.
Tq. Basavakalyan, Dist. Bidar.
5. Siddamma W/o Gurlingayya Swami,
Aged about 45 years, Occ. Agriculture,
R/o Village Ramaling Mudgad,
Tq. Nilanga, Dist. Latur (M.S.) - 413 512.
...Respondents
(Sri.Mahadev S Patil for R1 to R5)
This Regular Second Appeal is filed under Section
100 of CPC against judgment and decree 12.04.2013
passed in R.A.No.25/2012 on the file of Senior Civil
Judge, Basavakalyan, wherein the appeal has dismissed
and judgment and decree dated 31.08.2012 passed in
O.S.No.29/2009 on the file of Civil Judge, Basavakalyan
was confirmed.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
Heard. By consent of learned Advocates appearing for parties and taking into consideration that this second appeal is of the year 2013, it is taken up for final hearing. The learned Advocates have been heard and this Court is of the considered view that following 3 substantial questions of law would arise for consideration ;-
"Whether the property bearing Sy.No.93/2/E and Sy.No.94/A of Yallagundi Village, Basavakalyan Taluk purchased by plaintiff No.4 ?
OR Whether the property bearing Sy.No.93/2/E and Sy.No.94/A of Yallagundi Village, Basavakalyan Taluk purchased by plaintiff No.4 is required to be treated as joint family property or the self-acquired individual property of plaintiff No.4?"
2. Facts in brief which has lead to filing of this second appeal are as under ;-
Plaintiffs and defendant are uterine brothers and sisters. One Sri.Sangayya was the original propositus and he had three sons Sri.Kallayya, Sri.Gurubassayya and Sri.Viswanathayya. Whereabouts of said Sri.Viswanathayya are not known. The original 4 propositus Sri.Sangayya possessed four items of immovable properties which has been described in the plaint by plaintiffs are the subject matter of adjudication in the original suit. Plaintiffs No.1, 2 and 5 being sisters of plaintiffs No.3, 4 and defendant along with plaintiffs No.3 and 4 filed the suit in question contending interalia that plaintiffs No.1 to 5 and defendant are the sons and daughters of Sri.Kallayya and on his demise the defendant is intending to deprive the shares of plaintiffs and is attempting to alienate the suit schedule properties by making plots in the suit lands and despite they requesting defendant not to sell the same without allotting their 5/6th share, defendant has refused to meet their demands and is attempting to sell the suit schedule property and as such they sought for partition and separate possession of 5/6th share in the suit schedule properties.
Defendant on service of suit summons appeared, filed his written statement and admitted the 5 relationship and contended that during the lifetime of Sri.Kallayya and Sri.Gurubassayya there was a partition and since Sri.Gurubassayya had no issues he had adopted the defendant as his son and on their demise he acquired title to suit schedule properties. It was also contended that on account of prior partition having been taken place suit is not maintainable. However, defendant admitted that suit schedule properties are ancestral properties. It was also contended that plaintiffs No.1, 2 and 5 were given in marriage long back and they had no right in suit schedule properties. It was further pleaded that after adoption of defendant in the year 1972 by celebrating it by way of function Sri.Kallayya and Sri.Gurubassayya were living separately and taking care of their family and in order to avoid any complication the adoption deed was reduced into writing on 06.04.1991 and in order to avoid any future dispute the suit schedule properties in the year 1998 were partitioned virtually in presence of 6 plaintiffs No.3 and 4 in which Sri.Gurubassayya was allotted 03 Acres 19 guntas in Sy.No.40/5/A and remaining properties measuring 03 Acres 20 Guntas was allotted to the share of Sri.Kallayya and as such on the demise of adopted father Sri.Gurubassayya he had succeeded to the property bearing Sy.No.40/5A and likewise the plaintiffs have succeeded to said property of Sri.Kallayya. It is further contended that plaintiffs No.3 and 4 in collusion with other plaintiffs and to deprive the defendant the right over the property allotted to Sri.Gurubassayya are seeking partition and they are not entitled to any share. As such he sought for dismissal of suit. Trial Court on appreciation of evidence tendered by parties decreed the suit as prayed for by judgment and decree dated 31.08.2012.
3. The sole defendant filed an appeal in R.A.No.25/2012 reiterating the pleas put forward in the written statement before trial Court by very heavily relying upon purported adoption deed whereunder the 7 defendant was said to have been adopted by Sri.Gurubassayya. The lower appellate Court after considering the rival contentions and on formulating points for its determination by its judgment and decree dated 12.04.2013 allowed the appeal in part and modified the judgment and decree of trial Court by concluding that plaintiffs No.2 and 5 being the daughters are married even prior to 1994 and as such they are not entitled for share on par with plaintiffs No.3, 4 and defendant and would be entitled to the share which fell to the share of their father and accordingly by making a notional partition held that plaintiffs No.3, 4 and defendant would get 1/4th share out of 1/4th share of their father and it is to be divided between plaintiffs and defendant and as such when divided by 1/6th share, each of the parties to the suit would be entitled to 1/24th share namely plaintiffs No.1, 2 and 5 and plaintiffs No.3 and 4 would be entitled to 7/24th share (1/4th + 1/24th). Accordingly, modified the 8 judgment and decree of trial Court by decreeing the suit of plaintiffs and holding that plaintiffs No.2 and 5 will get 1/24th share and plaintiffs No.3, 4 and defendant will get 7/24th share in the suit properties. Being aggrieved by the same, the present regular second appeal has been preferred by sole defendant.
4. It is the contention of Sri.Shivakumar Kalloor learned counsel appearing for appellant that the courts below erred in not considering and appreciating the available evidence on record in proper perspective and particularly ignoring Ex.D9 - Adoption Deed since the defendant had examined the witnesses to said document who had identified the signatures found on Ex.D9 and this aspect had been lost sight off. He would also submit that entries found in the revenue records would indicate that there was a prior partition between the members of family and Sy.No.40/5A measuring 03 Acres 19 Guntas was allotted to the share of defendants 9 adopted father Sri.Gurubassayya and this aspect has not been considered by both the courts.
5. He would also drawn the attention of the court to the cross-examination of PW1 whereunder it is admitted by PW1 that he got 01 Acre 13 Guntas from his father and 01 Acre 15 Guntas was allotted to his brother Sri.Mahadev in respect of Sy.No.40/4A and Sy.No.40/4AA respectively including 15 guntas in Sy.No.40/5AA allotted to the share of Sri Mahadev and the revenue records produced before courts below would speak for themselves about such division of properties having taken place and contends non consideration of this aspect in proper prospective has resulted in an erroneous judgment and decree having been passed by trial Court. He would also submit that plaintiff No.4 had purchased or owned 02 Acre 20 Guntas and 03 Acre 03 Guntas in Sy.No.93/2E and Sy.No.94/Aa of Yellagundi Village, Basavakalyan Taluk and this property having not been included in the suit, suit for partial partition 10 was not maintainable and to evidence the fact that said property was purchased by plaintiff No.4, application filed for production of additional evidence sought to be taken on record. Hence, he prays for judgment and decree being set-aside.
6. Per contra Sri.Mahadev S Patil learned counsel appearing for respondents No.1 to 5 would support the judgment and decree passed by courts below and he would contend that both the courts have recorded a finding of fact with regard to adoption and as such said issue would not arise for consideration in this present regular second appeal and even otherwise defendant himself admits that partition took place in the year 1998 but same was not proved by defendant and even otherwise when there is no dispute to the fact that suit properties are joint family properties of plaintiffs No.1, 2 and 5 could not have been denied the right in the suit properties and on account of their exclusion from being allotted share the suit in question 11 came to be filed and same has been rightly decreed and modified by appellate Court and contends that there is no error committed by lower appellate Court. Hence, he prays for dismissal of the appeal by answering the substantial questions of law in favour of respondents- plaintiffs. He would also elaborate his submission by contending that application filed by appellant for additional evidence by invoking Order 41 Rule 27 of CPC, is not required to be entertained by this Court for two reasons;-
(i) no good ground is made-out to entertain the application for additional evidence
(ii) Even according to the recitals found in the sale-deed accompanying the application for additional evidence, same would disclose that it was purchased in the year 2006 much prior to filing of suit and as such it cannot be construed or held or opined that the properties included or purchased by 12 plaintiff No.4 was out of joint family funds. But on the other hand, it is his personal property purchased out of his own funds and not out of joint family funds. Hence, he seeks for dismissal of appeal.
BACKGROUND OF THE CASE:
7. Undisputedly the original propositus was ONE Sri.Sangayya and amongst his three sons Sriyuths Kallayya, Gurubassayya and Vishwanathayya, the whereabouts of his third son Vishwanathayya was not known. It is also not in dispute that Sri.Gurubassayya did not have any issues. Further fact which is not in dispute is that defendant Sri.Sangayya and plaintiffs are the children of Sri.Kallayya. However the sole defendant Sri.Sangayya contended that on account of Sri.Gurubassayya not having any issues he was given in adoption to the family of Sri.Gurubassayya in the year 1972 and as such he was adopted by them after 13 completing all the formalities and conducting of religious functions in that regard and also performing 'Datta Homa'.
8. On one hand, plaintiffs contended that the suit schedule properties are all joint family properties and the defendant was managing the same and when he attempted to sell without allotting any share to the plaintiffs No.1, 2 and 5, they demanded their share in the suit properties and on refusal, suit in question is filed. Plaintiffs No.2 and 4 have also virtually adopted the stand of plaintiffs No.1, 2 and 5. On the other hand defendant contended that there was a partition long back in the family and the properties belonging to Sri.Sangayya was divided between his two sons namely Sri.Kallayya and Sri.Gurubassayya and each of them were equally allotted the shares in the properties and Sri.Gurubassayya was allotted 03 Acres 19 guntas in Sy.No.40/5A and Sri.Kallayya was allotted 03 Acres 19 Guntas in Sy.No.40/4A, Sy.No.40/4Aa and 14 Sy.No.40/5Aa to an extent of 01 Acre 30 guntas, 01 Acre 15 Guntas and 15 Guntas respectively and each of the brothers were in possession and enjoyment of their respective shares allotted to them and revenue records were mutated to their respective names. However, this purported partition or division of the properties was disputed by plaintiffs.
9. Trial Court has held on appreciation of evidence that all the properties were belonging to joint family of Sri.Sangayya and his children and it was not divided and as such equal shares came to be allotted to the parties viz., by allotting 5/6th share in the suit properties. However, appellate Court on re-appreciation of evidence noticed that plaintiffs No.1, 2 and 5 being the daughters and married much prior to 1994 they would not entitled to equal share as that of a son but would be entitled to a share in the share which would have been allotted to their father. In other words, it came to be held that by creating a notional partition 15 and allotting 1/4th share to the father out of which plaintiffs No.1, 2 and 5 would be entitled to and accordingly allotted 1/24th share to plaintiffs No.1, 2 and 5 and plaintiffs No.3 and 4 and the defendant 7/24th share. There is no cross appeal by the plaintiffs. However, the sole defendant alone as noticed herein has challenged the said judgment and decree dated 12.04.2013 passed by lower appellate Court. RE-SUBSTANTIAL QUESTION OF LAW :-
10. In view of relationship and the description of suit properties as well as the findings recorded by courts below having been delved upon hereinabove, further discussion would only burden the records and as such they are not repeated while answering this question of law, except to the extent it is required. The main thrust of the argument of Sri.Shivakumar Kalloor learned counsel appearing for the appellant in the present appeal is that suit itself is not maintainable on 16 account of one of the items of joint family properties having not been included in the plaint schedule. There cannot be any dispute to the preposition that suit for partial partition is not maintainable and all joint family properties are to be included in a suit for partition and separate possession. This view is supported by judgment of this Court in the case of Sri.Vishwaraj and Anr. v. B.M.Byrappa and Ors reported in 2013 (3) AKR 12 and in the case of Parasharma and others v. Tanaji Ishwar Kadolkar and others reported in HCR 2014 Kant. 237.
11. However the substantial question that would arise for consideration is ;
"Whether the properties bearing
Sy.No.93/2/e and Sy.No.94/A of
Yallagundi Village purchased by
plaintiff No.4 under sale-deed dated 29.05.2006 is joint family property or not ?"17
12. For the first time before this Court the defendant has sought to produce the sale-deed relating to said property by way of additional evidence. On account of stiff opposition posed by respondents- plaintiffs to said application, this Court has to examine as to whether the said application for additional evidence is required to be allowed or not ?
13. The Appellate Court under four contingencies is empowered to take on record additional evidence namely :
(i) Where such evidence was sought to be produced before Court blow had been refused ;
(ii) In spite of due diligence said evidence could not be tendered ;
(iii) The appellate Court itself requiring the document/s to enable it to pronounce the judgment ;
(iv) For any other substantial cause. 18
14. By mere receiving the document on record by way of additional evidence would not suffice for arriving at a conclusion that property as indicated in the sale-deed dated 29.05.2006 are purchased out of joint family funds or it is the individual property of plaintiff No.4. If for any reason it is to be held that it is a joint family property or purchased out of funds generated from the joint family properties then necessarily the said property would be required to be included as one of the properties being available for partition. In such an event all the parties would be entitled for a share in the said properties. However, on the other hand if it is to be held that it is the individual or self-acquired property of plaintiff No.4 then non inclusion of said property in the suit would not be fatal to the suit. In other words, evidence is to be recorded and parties are to be granted liberty to tender their respective evidence. In view of the fact that finding recorded on the same would have bearing on the finding 19 to be arrived at and it would have bearing on the very maintainability of the suit itself, this Court is of the considered view that matter requires to be remitted back to first appellate Court which is also a fact finding Court and as such the matter is being remitted or remanded back to the first appellate Court by allowing the application I.A.No.1/2017 for production of additional evidence. However, it is made clear that no opinion is expressed with regard to the merits of the claim insofar as the contents of the sale-deed dated 29.05.2006. In that view of the matter, I proceed to pass the following JUDGMENT
(i) Second appeal is hereby allowed.
Question of law is kept open.
(ii) Judgment and decree passed in R.A.No.25/2012 by the Senior Civil Judge, Basavakalyan dated 12.04.2013 is hereby set-aside. Matter is remitted back to the said Court i.e., Senior Civil 20 Judge Court, Basavakalyan for recording additional evidence of defendant on the sale-deed dated 29.05.2006 and in the event of the plaintiffs objecting to marking of said document, the lower appellate Court is at liberty to receive the said document on record since it is certified copy and after getting the said document marked and granting liberty to the plaintiffs to rebut or tender rebuttal evidence if any shall dispose of the appeal keeping in mind the observations made herein above. Both parties are at liberty to file additional pleadings.
(iii) Insofar as the findings recorded by the trial Court as upheld by lower appellate Court with regard to the adoption, the contention of the appellant stands rejected and the findings recorded by both the Courts are hereby accepted.
(iv) The first appellate Court is directed to dispose of the appeal expeditiously 21 subject to both parties cooperating with it.
Registry is hereby directed to transmit the records to the jurisdictional lower appellate Court forthwith.
Sd/-
JUDGE sn