Karnataka High Court
Smt Nagamma vs Patel Muniyappa on 2 July, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2019
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
R.S.A.No.1049/2006
BETWEEN:
SMT. NAGAMMA
W/O KRISHNAPPA
AGED ABOUT 39 YEARS
R/O ALABADI VILLAGE
BUDIKOTE HOBLI
BANGARPET TALUK - 563 114.
...APPELLANT
(BY SRI S SUBHASH, ADVOCATE)
AND:
1. PATEL MUNIYAPPA
SINCE DEAD BY LRs
1a. SRI MUNICHANDRAPPA
1b. SRI SEENAPPA
BOTH MAJOR AND ADOPTED
SONS OF DECEASED
1ST RESPONDENT, R/A
ALAMBADI VILLAGE
BUDIKOTE HOBLI
BANGARPET TALUK
KOLAR DISTRICT.
2. KRISHNAPPA
SINCE DECEASED
2
REPRESENTED BY
2a. SMT.SAKAMMA
AGED ABOUT 32 YEARS
W/O LATE KRISHNAPPA
2b. MASTER RAMESH
AGED ABOUT 16 YEARS
S/O LATE KRISHNAPPA
2c. MASTER SOMASHEKAR
AGED ABOUT 13 YEARS
S/O LATE KRISHNAPPA
2d. KUMARI SANDHYA
AGED ABOUT 11 YEARS
D/O LATE KRISHNAPPA
RESPONDENTS 2(b), 2(c) & 2(d)
BEING MINORS ARE BEING
REPRESENTED BY THEIR MOTHER
AND NATURAL GUARDIAN
SMT. SAKAMMA
RESPONDENT No.2(a)
ALL THE RESPONDENTS 2(a) TO 2(d)
ARE R/AT ALAMBADI VILLAGE
BUDIKOTE HOBLI
BANGARPET TALUK
KOLAR DISTRICT.
3. VENKATAMMA
SINCE DECEASED
REPRESENTED BY
2ND RESPONDENT.
4. VENKATAMMA
W/O HUCHAPPA
AGED ABOUT 46 YEARS.
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5. NARAYANAPPA
S/O LATE CHINNAPPA
AGED ABOUT 51 YEARS
6. NARAYANAPPA
S/O MUNIYAPPA
AGED ABOUT 41 YEARS.
7. KUNTAPPA
S/O PAYAPPA
AGED ABOUT 46 YEARS
8. MUNEPPA
S/O CHKKAMUNEPPA
AGED ABOUT 46 YEARS
ALL R/O ALAMBADI VILLAGE
BUDIKOTE HOBLI
BANGARPET TALUK
KOLAR DISTRICT - 563 114.
...RESPONDENTS
(BY SRI H N RAJANNA SETTY, ADVOCATE FOR R1(a & b)
SRI MANOHAR B K, ADVOCATE FOR R2(a to d)
R2 (b to d) ARE MINORS, REP. BY R2(a)
R3 IS DEAD, REP. BY LRs. R2,
VIDE COURT ORDER DTD.23.10.18
R-4 TO 8 ARE DISMISSED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED
17.12.2005 PASSED IN R.A.No.72/2002 ON THE FILE OF
THE CIVIL JUDGE (SR.DN) K.G.F., DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 20.02.2002 PASSED IN O.S.No.290/89 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) K.G.F.
THIS RSA COMING ON FOR DICTATION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is directed against the judgment and decree dated 17-12-2005 passed by the learned Civil Judge (Sr.Dn) KGF, in R.A.No.72/2002, wherein the appeal came to be dismissed and the judgment and decree passed in O.S.No.290/1989 on 20-2-2012 by the learned Civil Judge (Jr.Dn), KGF was confirmed.
2. In order to avoid confusion and overlapping, the parties herein are referred to with their rankings as held by them before the trial Court.
3. Originally, the suit in O.S.No.290/1989 was filed by one Nagamma wife of Krishnappa, 35 years, D/o Chikkamuniyappa, Alambadi village, Bhudikote Hobli, Bangarpet Taluk. It was a suit for partition that came to be dismissed. That was confirmed by the first Appellate Court in regular appeal as well.
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4. The crux of the claim of the plaintiff is, one Thimamnna was a resident of Alambadi Village. It was also called as Jyothinahalli. The said Thimmanna was residing in his ancestral house at Alambadi village. He had two sons, namely Patel Muniyappa and Chikkamuniyappa. They formed joint Hindu family. Upon the death of Thimmanna, the joint family continued by his sons Patel Muniyappa and Chikkamuniyappa.
5. Chikkamuniyappa reported dead living behind the plaintiff. It was not a death in the ordinary course. It is stated that the said Chikkamuniyappa left the village about 20 years prior to the filing of the suit and his whereabouts are not known. For all the practical purpose, he was treated as dead. Thus, the plaintiff Nagamma who is stated to be the daughter of Chikkamuniyappa filed the suit for partition. 6
6. The 1st defendant is Patel Muniyappa is the brother of the plaintiff's father. The said pleadings are denied. The claim of relationship of the plaintiff Nagamma with Chikkamuniyappa, her right to partition and the nature of the properties for partition are also denied.
7. The 1st defendant also contended that earlier one Venkatamma claiming to be the wife of Chikkamuniyappa had filed a suit in O.S.No.363/1971 for permanent injunction in respect of the schedule properties. Venkatamma claimed to be the wife of Chikkamuniyappa. The contention of defendant No.1 Patel Muniyappa is that partition of the joint family properties took place way back and no properties remained for partition. The said suit came to be dismissed.
8. In the present case, the trial Court was accommodated with the oral evidence of PWs- 1 to 4 7 and Exs.P1 to P25 on behalf of plaintiff and DWs 1 to 3 and Exs.D1 to 45 on behalf of defendants. After considering the material on record, dismissed the suit filed by the plaintiff on 20.2.2012. Being aggrieved by the judgment and decree passed by the trial Court in the original suit, plaintiff preferred Regular appeal before the first Appellate Court in R.A.No.72/2002. The said appeal also came to be dismissed and the judgment and decree passed by the learned trial Court in the suit was confirmed. Thus, plaintiff-Nagamma is in second appeal before this Court against the said judgment and decree refusing the partition.
9. It is necessary to mention that in the regular appeal respondent No.8 was impleaded as purchaser in the first appellate court. Hence, purchasers are respondent Nos.4 to 8.
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10. This Court while admitting the appeal framed the following substantial questions of law on 13.6.2018:
(i) Whether the First Appellate Court is justified in affirming the Judgment and Decree of the Trial Court without appreciating the pleadings and evidence on record in respect of issue No.2 relating to the relationship of Plaintiff as the daughter of Sri.Chikkamuniyappa as required by Order XLI Rule 31 of Code of Civil Procedure, 1908 which is also the first point for consideration before the First Appellate Court?
(ii) Whether the admission stated to have been made by Smt.Venkatamma in O.S.No.363/1971 which is a previous proceedings/suit binds the Plaintiff Smt.Nagamma, a person who was not a party to the said suit?
(iii) Whether the land granted under the Inam Abolition Act on the basis of rights claimed as a Jodidhar can be held to be the separate property of Patel Muniyappa or whether it will enure to the benefit of the family?
(iv) Whether the First Appellate Court is justified in not framing specific points for consideration in relation to the disputed questions involved in the suit as required under Order XLI Rule 31 of the Code of Civil Procedure, 1908?
(v) Whether the Court below is justified in not drawing a conclus9on that the 1st defendant has admitted the share of the plaintiff in the 9 properties by taking the plea of adverse possession?
11. At the time of hearing, this Court has also framed the following additional substantial questions of law on 03-06-2019:
(i) Whether the plaintiff established that she is the daughter of Chikkamuniyappa?
(ii) Whether the appellant in the capacity as the plaintiff established the existence of joint family consisting of Patel Muniyappa and Chikkamuniyappa?
(iii) Whether the appellant established that she was entitled for share in the joint family properties as the daughter of Chikkamuniyappa?
(iv) Whether OS NO.363/1971 filed by Venkatamma claiming as the wife of Chikkamuniyappa that was dismissed operates as estoppel or res-judicata against the plaintiff.
(v) Whether the granted properties in the facts and circumstances of the case 10 are exclusively allotted to defendant No.1 without any fabric of a grant to the joint family.?
12. The learned counsel for the appellant Mr. S.Subhash would submit that the trial Court as well as the first Appellate Court dismissed the suit without analyzing the relevant principles of Hindu Law and the Rules of evidence regarding the treatment of the absence of the person for a period of more than 20 years.
13. Learned counsel would further submit that the trial court held that the joint family of the plaintiff existed from a very long time among Thimanna, Patel Muniyappa and Chikkamuniyappa. The Plaintiff was added to the tally on her birth. The properties are ancestral and the same is evidenced by the revenue documents. As such, there were no technicalities involved in the suit. However, the evidentiary value of 11 the legal position was not properly analysed. It was further submitted that the plaintiff is the daughter of Chikkamuniyappa and there are no male issues and that her right for the share of property is on equal footing to that of the defendant Patel Chikkamuniyappa. But the same was refused by both trial and first appellate Courts. Thus the legal and legitimate right of the plaintiff was deprived. Learned counsel further submits that the judgment of both the Courts below are erroneous and are liable to be set aside.
14. Learned counsel Sri. Rajanna for the first defendant would submit that plaintiff- Nagamma is a total stranger to the family of Thimmanna or Patel Muniyappa. He would further submit that the plaintiff is very well aware that she is not entitled for a share in the properties of the joint family for the very reason that, no joint family existed and that the schedule properties are all self acquired properties of Patel 12 Muniyappa in which either Venkatamma or plaintiff or persons claiming under them have any semblance of rights related to succession.
15. The relationship between Thimmanna and Patel Muniyappa is not disputed as the latter is the son of the former. The schedule properties belonging to the family of Thimmanna claimed to be joint, however the same was denied.
16. It is not disputed that earlier one Venkatamma claiming to be wife of Chikkamuniyappa had filed a suit against the defendant for the relief of permanent injunction in respect of the schedule property. The said suit came to be dismissed. Meanwhile, the defendant No.1-Patel Muniyappa takes out a point from the said suit that Venkatamma admitted that the partition of the properties took place very long back.
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17. It is necessary to make a mention that the plaintiff- Nagamma claims to be the daughter of Chikkamuniyappa and Venkatamma which is stoutly denied by the defendant which plays a pivotal role in the case, among others.
18. The learned trial Judge while rejecting the prayer of the plaintiff for partition observed that most of the properties are granted properties under Personal and Miscellaneous Inams Abolition Act. It was also held by the learned trial Judge that Venkatamma, mother of the plaintiff had filed a suit in O.S.No.363/1971 and according to Patel Muniyappa, plaintiff- Nagamma is estopped from claiming share in the suit schedule properties or asserting as the daughter of Venkatamma and Chikkamuniyappa.
19. The bone of contention goes one step further, wherein, it is also contended by Patel 14 Muniyappa, defendant No.1 that Chikkamuniyappa is not dead.
20. Insofar as the claim of the plaintiff to be the daughter of Chikkamuniyappa is substantially based on Section 107 and 108 of the Evidence Act, which is as under:
"107. Burden of proving death of person known to have been alive within thirty years - When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it."
"108.Burden of proving that person is alive who has not been heard of for seven years
- provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
21. The said presumption is not rebutted. Thus, the notional presumption that when a person is not seen or known to have been alive for the said seven years the burden of proving that he is dead is on the 15 person who affirms it. However, it is for the person asserting that he is not dead to establish the living of the person who is presumed to be dead to rebut the said presumption.
22. In this connection, 1st defendant denies death of Chikkamuniyappa and positively asserts that the latter is alive, but fails to provide the details of Chikkamuniyappa being alive.
23. The next significant aspect is denial of relationship between plaintiff and Chikkamuniyappa. Plaintiff Nagamma is claiming as daughter of Chikkamuniyappa who is none other than the brother of Patel Muniyappa. The plaintiff asserts that her father Chikkamuniyappa is not seen continuously for more than 20 years and that he is for practical and legal purpose dead. As stated above, defendant after denying the assertion of the plaintiff does not proceed further in the direction.
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24. By virtue of the presumption raised by the plaintiff being denied by the defendant, no efforts are made to rebut it. It is also pertinent to note that from the evidence and the material placed on record, there is no information regarding the fact as to Chikkamuniyappa is alive.
25. Further in the context and circumstances of the case and from the previous proceedings it is seen there is no material evidence to believe that Chikkamuniyappa is dead and even to presume against the said presumption.
26. Regarding the next aspect of denial of parental relationship between plaintiff and Chikkamuniyappa, the important point is that the marriage or marital life is a personal right. It is not disputed that Chikkamuniyappa left the house 20 years 17 back and gone and no further details are produced by either by the plaintiff or by the defendant.
27. Plaintiff claims to be the daughter of Chikkamuniyappa and Venkatamma. In this connection, it is also brought on record that Venkatamma had filed original suit in O.S.NO.363/1971 for permanent injunction, wherein, she reported to have admitted the happening of the partition in the joint family, originally, led by her father- in- law- Thimmanna.
28. When Chikkamuniyappa was not seen, the defendant who claimed that he was alive appears to have taken it very casually and no material to believe or probabilising the said fact has been produced. It has been the case 'deny and be silent'. In the circumstances, the relationship claimed by plaintiff is with reference to her father Chikkamuniyappa when he went away from home about 20 years back and not 18 heard about him, it is not within the competency and personal knowledge of Patel Muniyappa to deny the marital relationship between Chikkamuniyappa and Venkatamma mother of the plaintiff.
29. The 1st defendant Patel Muniyappa being the elder brother denies the relationship but it lacks probative force for the very reason that, whether the admission or fact to bear the evidentiary value of reliable shall be by persons competent and the materials produced by him are reliable, but both are absent in the case. Thus, the personal matter of marriage between Chikkamuniyappa and Venkatamma cannot be said to be within the personal knowledge of the defendants.
30. It is to be noted that the denial of parental relationship between the plaintiff and Chikkamuniyappa appears to have been denied for the sake of denial without there being substance in it.
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31. Apart from not producing the details of his living, it could have urged that whether Chikkamuniyappa was unmarried. As a matter of fact, 1st defendant in his written statement taken up a contention that Chikkamuniyamma is the wife of Chikkamuniyappa. However, it was not beyond the reach of the defendants to examine the relatives of Chikkamuniyamma when she was alive, or her relatives or known persons to establish the fact. The mere denial of parental relationship and asserting relation with the third party and Chikkamuniyappa does not reflect legal force to rely the same.
32. The point that floats from the pleadings stands to the evidence and documents. The submission that Thimmanna having two sons Patel Muniyappa and Chikkamuniyappa is not disputed by either of the parties. The fact of Chikkamuniyappa being younger to Patel Muniyappa is not disputed. Chikkamuniyappa 20 having gone out of the house 20 years prior to the suit is not disputed.
33. O.S.No.363/71 filed by one Venkatamma, mother of plaintiff for permanent injunction against Patel Muniyappa/defendant No.1 also is not disputed. The said suit being dismissed is admitted. Plaintiff claims as daughter of Chikkamuniyappa and Venkatamma.
34. Said Venkatamma is third defendant in the present suit. Similarly plaintiff claims that Krishnappa who is defendant No.2 is her brother. For the reasons morefully assigned above, the court has found that the paternity of plaintiff in the form of daughter of Chikkamuniyappa is recognized. As already stated defendant No.1 -Patel Muniyappa has reason to believe that Venkatamma-defendant No.3 had unequivocally admitted that partition of joint family properties was already effected. In the circumstances, if partition was 21 earlier effected the same could have been explained by connected documents more particularly revenue records. Thus, when the defendant has reason to believe that the family got divided through partition it presupposes there existed a joint family and hence partition took place in which event it is for the defendants to explain the fact of partition if existed.
35. Insofar as the revenue records at Exhibits P- 1 to P11 are concerned, it reflects that there was no fabric of partition for effecting revenue entries. Thus, it is not the case or defence of the defendants that joint family did not exist at any point of time. On the other hand it existed but disrupted through partition.
36. Appellant's counsel relied on the following decisions:
1. 2011(2) KCCR 1389 (SC) - H.Siddiqui(dead) by Lrs Vs A.Ramalingam 22
2. ILR 2012 Kar 1020 - Bangarappa Vs Rudrappa and anr
37. On the other hand, Respondent's counsel relied on the following decisions:
(1) AIR (SC) 2019-1441 -Gurnam Singh (D) by Lrs and others (2) AIR(SCW)-2006 -4368 - Anjanappa Vs Somalingappa (3) SCC (CIV)-2015-1-527 -Padamma Vs Ramakrishna Reddy (4) AIR 1989 SC 879 - Shankarrao Vs Vithalrao (5) 1997(5) Kar.L.J 122- Channappa Vs Channaveerappa (6) 1999(5) Kar.L.J 178 -Dhobi Ramaiah Vs Dhobi Abbiga (7) KCCR -2006 -2-879
38. Suit in O.S.No.363/71 filed by Venkatamma is for permanent injunction and either her pleading or representation do not come in the way of the plaintiff in this case.
39. By virtue of the presence of defendants 4 to 8 admittedly who are purchasers and their purchases are all from defendant No.1 out of land in Sy.No.42/5 23 which is item No.1(d) of the schedule property. It is also necessary to make a mention that the present appeal came to be dismissed on 23.10.2018 against respondents 4 to 8 for non furnishing of process fee to issue notice to them. Thus, the finding in favour of the purchasers-respondents 4 to 8 remains unchallenged. Regard being had to the fact that it was dismissed for not taking steps. In the process contentions of the said defendants hold good.
40. It is necessary to focus on another concept in the suit. It was submitted that as per the direction of the trial court plaintiff-Nagamma was asked to implead Venkatamma and Krishnappa to the suit irrespective of the fact whether plaintiff-Nagamma was ready or otherwise. The plaintiff made application for impleading defendants 2 and 3 that was allowed by the trial court. Thus, it is manifest and unequivocal admission that her 24 mother and sibling by virtue of their relationship with Chikkamuniyappa are at par.
41. Under such circumstances, the plaintiff is not totally justified in claiming 50% of the share by excluding Venkatamma, the mother and Krishnappa, the brother. Insofar as the existence of relationship between Chikkamuniyappa and plaintiff is as stated above. Substantial properties of the joint family are stated to be jodi properties of Alambadi (Jothinahalli) Village. In the circumstances entire schedule properties are established to be invariably belonged to joint Hindu family originally led by Thimmanna thereafter defendant No.1-Patel Muniyappa. There are no facts to believe the version of the defendant No.1 contending the schedule properties as his self acquired properties. However, the claim of the plaintiff being entitled for 50% is totally not acceptable as it becomes ½/3 that becomes 1/6th. Further the purchasers 4 to 8 are entitled to rights of 25 bonafide purchasers. Thus, the share of property purchased by respondents 4 to 8 cannot be altered since the joint family property for the purpose of reckoning purchase is item No.1(d). Thus, the rights of the purchasers-defendants deserve to be protected. Further in the presence of defendants 2 and 3 the share of the plaintiff deserves to be trimmed down from 50% to 1/6th.
42. The plaintiff is entitled for her legal and legitimate share in the suit schedule property so also the defendants 2 and 3. The respondents Nos.4 to 8 are the purchasers who claim as bonafide purchaser deserve for protection of their respective shares. There are no allegations of vices against defendant No.1 nor the claim of respondents-purchasers Nos.4 to 8 are questioned by the plaintiff or defendants 2 and 3. 26
43. Both the trial court and first appellate court have committed grave error in not recognizing the principles regarding relationship between Venkatamma and Chikkamuniyappa and their right of partition of the suit schedule properties.
44. In that score the information claimed by the plaintiff by her pleadings that his father Chikkamuniyappa was alive is not supported by circumstances or documents and same cannot be accepted.
45. In the circumstances, Judgment and decree passed by the trial court and first appellate court are liable to be set aside and suit of the plaintiff is liable to be decreed holding that plaintiff is entitled for 1/6th share from the remaining properties in the schedule after deducting the share of respondents-purchasers 4 to 8. Substantial questions of law are answered accordingly.
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In the result, the following:
ORDER Appeal is allowed. Judgment and decree dated 17.12.2005 passed in R.A.72/2002 by the Civil Judge (Sr.Dn), KGF and Judgment and decree dated 20.02.2002 passed in O.S.No.290/89 by the Principal Civil Judge (Jr.Dn), KGF are set aside.
Suit is decreed in part holding that plaintiff is entitled for 1/6th share in the remaining properties in the schedule after deducting the share of respondents- purchasers 4 to 8.
Cost imposed on 23.11.2018 is waived.
Sd/-
JUDGE tsn*/RS/SBN