Karnataka High Court
Master Harsha Chandrapal vs Smt T S Nagarathnamma on 14 December, 2011
Bench: N.Kumar, H.S.Kempanna
___and sister of third defendant.
2. For the purpose of conisgeniencethefparties
referred to as they are referred to in the origginal suit.
3. The case of the plai'nt.i'ffsl"i-»s_, plaiiitiffsl and the
third defendant consltitlutel'* of the H.U.F.
The third defen_dantvi.an.r..ljhis_ Nanjundappa
constituted' "'l'l';'.Ll.P' which owned
properties det'ailed'---in:"z'l\f.'j'schedule hereunder and
also schedule hereunder till
the date father of the plaintiffs on
11. 12. ,I5§Ml:i\l_anii.:ndappa has half share in the A
scheduleliproperties and also C schedule amounts
defendant has remaining half share. The
is the grand mother of the plaintiffs,
rri'o._the_r' ,o*fS the third defendant, being wife of
nl\lanjzun:dappa. The second defendant is the paternal
of the plaintiffs, daughter of the first defendant
She is married on
30.5.1986. Since then she is residing with her husband
who is a full time employee of the Spice Board. Item
No.6 of the A schedule property belonged to the paternal
is in the joint names of himself and defendant _
item Nos.6 to It is submitted
was given in marriage on
began to reside with second
defendant could not properties in
her name without discylposing income to the
Spices If she had
purchased. ficolntributing either her
moneyflg money, she should have
intimated. through her husband about
acquisition.V It. reliably learnt that the husband of the
second .re.sA'p-ondent has not obtained permission, to
acijuirle fjroperties by his wife, from the Board nor
8 8 declaredtlie half interest in the B schedule item N06 to
if 8 the Board. This clearly establishes that she could
fnotlfcontribute anything to purchase B schedule item 6
"Vito 8 along with third defendant as she had no funds nor
she had any other avocation in life to contribute for
purchase of these items.
3.2. As on the date of the death of the grand
father of the plaintiffs on 11.12.1989, his half interest in
M/,.
6
the schedule devolved upon the defendants f"e--ach
inheriting 1/3 of his half share interest.
position as on ll. 12.1989 was that the _
had l6/24 share in the schedule
defendants l and 2 had 4/V2/-lfh In 167/.24t:t" slgiarelha
of the third defendant, the and
together had 2 / 3rd of share.
Despite the above legal..p.o:sit.ion.igthe_'lfirgt'/i\.F1efe11dant had
filed a item No.5 against
the /85 claiming this item
as thus claimed the relief of
decla1'ati'on and permanent injunction
ag,a§:nlst~the defendant though in fact and reality
~ this itein *x2vas__ H.U.F. property of Nanjundappa and the
if 'third Though the first defendant had no
absolute right, title or interest in the property except a
fraction of share out of one half share of Nanjundappa
after the institution of the said suit and after the third
defendant filed his defence, there were serious
differences and misunderstandings by and between the
third defendant and his wife, mother of the plaintiffs.
The third defendant has actually" if
and plaintiffs. He was won over'=.by:;'_defendantis
and the first defendant
contest the said suit becau_se:'-o_fwvvhicl1~the "judgment
and decree was passeéclfin in favour of the
first defendantaand against thivrdifziefendaiit which
are collusive3._ju(lgmen't¢ and decree V'
3.13; thethirdwiefendant did not safe--
guard¢11e4"interest of the minor plaintiffs
herein becéalusefofwhich the said judgment and decree
pa:si:s.evdi'~in the suit are not binding on the plaintiffs
»A ;herein:.__first4 defendant and the third defendant
the court in passing the judgment in
falv-our" offthe first defendant and against the third
defendant.
3.4 Despite what all stated above, very strangely
= {defendants l and 2 together had filed a suit against the
third defendant in O.S.no.53/ 95 before the civil court
for partition and separate possession of their l/8"'
share each in item nos. 1 to 4, 6 to 10 of the A
u/
schedule and C schedule amounts. ._su3it", ..
though the second defendant'
purchased B schedule itemt_6_ herltlandtiie
defendant jointly, in the relile'f:p'art
one-third share in A'schedule".iterri"e-l\los.llto 6 to 10
and further, defendants categorically admit
in the said suit' thatithe ' therein are
all HUF The third
defend.a..ntA'th:ouVgh in the said suit
did proceedings subsequent to the
framing' the t Defendants l and 2 were
exagmlined in' the said suit, but they were not cross
"In this way, the third defendant has allowed
the defendant Nos.l and 2 to be decreed
to_tl1e of the share claimed by them i.e. one--third
each though the plaint schedule properties in the said
A "D A. are the HUF properties of the third defendant.
3.5 Defendants l and 2 are neither members nor
co--parcenors. Defendants l and 2 also prevailed upon
the third defendant not to contest the said suit because it
of which the judgment and decree passed in thebsjaid
suit is collusive by and between the third defendaritlf If,
this suit the third defendant did the
interest of the minor plaintiffs liereiind of
the judgment and decree passed Saivd"v"Su1.1Vll; tare
binding on the plaintiffs. T h'e¢.V'defend'ants 'plaved fraud
in passing the _
3.6. though in
O.S.No.5E§/if 3-1" share in item B
scheduleViternsdlgigjo a suit in O.S.No.6l / 95
on respect of the properties
claiming share'*.all'eging that these properties have
5acquired and the third defendant jointly
reality these properties were the HUP'
pr*~oper_jti'e_s}'of late grand father of the plaintiffs and the
third 'defendant. In the said suit also after filing the
ljvdeferice, the third defendant did not participate in the
-"proceedings. A decree came to be passed which is
collusive and is not binding on the plaintiffs. Therefore,
the judgments passed in the aforesaid case are collusive
V,
l0
judgments and decrees being the result _
by the defendants on the iv
Therefore, they sought a:ll'declaratji.o11.
aforesaid judgment and notl
binding on the plaintiffs antdllpfosrjj/partition'andlseparate
possession of their 24"' in all the
plaint schedules _
3.7, defendants l and 2
filed statement. They did not dispute the
relationship parties. However, they
speci_fically cjontendedllthat A schedule item No.5, 12 and
the 'properties acquired by Nanjundappa in
first defendant formed from out of the
'--joint VVfamfilyj'j:=nucleus and funds. It is false to say that
the "defendant has no independent funds or source
V nof__income to acquire these properties. Similarly, the
'gfainount mentioned in the C schedule property viz.
.-7:?3,5O,OOO/- was not deposited by Nanjundappa in the
name of the first defendant as contended. They also
denied that S.No.280/1P and 59/1 are joint family
ll
properties of Nanjundappa on
exclusive properties of defendant 2'
false to say that item No.7':_anxd the
joint family property of Palalgshllappa and..ll:l\Tanjlu1ndappa,
but item Nos."/' and "«€§:i"we're jolintlyTpurchased in the
name of the second respondent; heflsecond defendant
filed O.S.N.:(3'l/l.:v1'_9.95i;'_Aonl;'ctheVi"'fi.leVV ofythe Civil Judge (Sr.Dn.) €i'rai%1i«;;=iAi%e;;i--_V_ '-"mg third defendant for partitiionand. po';sse_ssi_oii_ of iierhalf share. The suit was decreed as against this no appeal is preferredl'.'«--._VllThe ._fii*st»d.ei'endant filed o.s.52/1995 in reVs'pecti'ofVS.No';28_Q_/vlP and the said suit is also decreed ' the first defendant is the owner of the H \. appeal is preferred.
Defendants l and 2 are not entitled to 2/ 2431 in the suit properties. They are entitled to l/ 31"
share in the properties except the properties involved in suit O.S.No.6l/1995 and O.S.NO.52/1995. It is true that defendants l and 2 have filed O.S.No.53/ 95 for partition and separate possession of 1/3" share each L/ 12 i.e. one-third to the first defendant the second defendant and,one--thii<dllsharetoe defendant and the suit waslvlvd'ec1'eed fo1«jr_l:2_/li>)rcxl:'f5hare to defendants 1 and by the plaintiffs in para 8 and They denied serious differences ldefendant and guardian Vpdlelnied the allegation that hasrnahandoned the plaintiffs and -the allegation of collusion. The 'is the natural father of the plaintiffs, lsmowirilg that his 1/ 3rd share is not touched l:now's«law.vwell has not elected to contest the .0 95. Anyhow, due to pressure from his defendant preferred RFA 545/2000, wh'ich~fis'v'dismissed. Hence, the right of the third .defendant to one-third share in the subject matter of l'AA_th--e-dsaid suit has attained finality. The said judgment at .._..hinds his sons and it amounts to res--judicata. As Nanjundappa died intestate, the third defendant--his son, second defendant~daughter and first defendant- wife are entitled to 1/3" share in the schedule u/"
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properties. In FDP 4/98 the properties are possession is delivered by the Tahsildar,__--'iTarikle['re=:l defendants 1 and 2 and they are_,in .e_xclu'sivle 'ploslseslsjovnu ll"
of the properties allotted to them. areno to set aside the decree inll__"G.V,.S.Nlo's.52V._ 1995. Therefore, they sough_t._for_dismissal. suit. 3.9 On the the trial Court framed the i'ol1:>§ving :-'2
i) prove that all the suit larc~t--h'le joint family properties :'a_of thefpla the defendants;
ii) prove that suit A schedule
-- , items 5,l2.T'an'd are the properties acquired by grarrd---«"father in the name of the 1"
as benami out of the joint family
iii), the plaintiffs prove that the judgments " .a711d decrees passed in O.S.Nos.52, 53 and 61 of 1995 in favour of the defendants 1 and 2 and against the 31" defendant are collusive judgment and decrees, as a result of fraud played by the defendants on the court'?
iv) Whether the defendants 1 and 2 prove that Sy.Nos.280/1P and 59/1 i.e. the suit A schedule l4 items 5 and 6 are the exclusive properties» lstdefendant? _ _v V) Whether the defendants l and 2 Bl .. schedule items 7 and 8jlpro'per_ti.es.; purchased in the name "defenda-nytsl
vi) Whether defendants the 8rd defendant andihis plaintiffs are jointly entitled / the joint family properties?__ if
vii) \?Vhetli_er the judgments and.§1eéf:3éS."'13a§§:é'idz;in5o;'s.'Nos.52, 53 and 61 of f1ai?~yo1,;r~.g§f défén'ciants 1 and 2 and the defendantleolnolerning to items 1 to 4 and 6 A B schedule properties are ' * not inllrespect of their undivided shares? ?.,Whether theplaintiffs prove that they are entitled _ "for lpairtition and separate possession of 8/2431 the suit schedule properties / monies'? ix]*- vWhether the plaintiffs prove that they are entitled if -for mean profits as prayed for? To what decree or order the parties are entitled to?
3.10. The plaintiffs examined B.Malathi, their natural mother as PWl. They also examined one Jayaprakash as PW2. On behalf of the second LV 1 15 defendant one Sujatha was plaintiffs produced 29 documents marléedz to P29. On behalf of the defendants docum_._ents._u were produced as D1 and 3.11. The trial ofthe oral and documentary the subject matter of the in the joint family property, the decree passed in "t'he"lA schedule property is the :belonging to the first defendant and of the suit in O.S.No.6l/ 95 is noti the joint property. It further held the » propertyp are in the name of the first defendant H ~ar.e_'nvotllthefihproperties acquired by Nanjudappa out of thhe jointfamily funds in the name of his wife. In fact, the competent court of Civil Jurisdiction has declared filthe': said properties as the properties of the first Fldefendant to which the third defendant herein is a party and the said judgment has attained finality. The plaintiffs had failed to prove that the judgment and 16 decree in O.S.No.52, 53 and Bl of l995 which are passed against the third defendant arew judgments and decrees as a result of fraud?"
the defendants on the court.
proved that S.No.280/ IP and items are the exclusive ofxthe. ll Item 7 and 8 were suit in O.S.No.53/1995 where of the parties are entitled {to"p;Vl:n:/'p5fl1:=A._ it negatived the properties are jointly defendants 2 and 3. Further, it heldf'thatldefendantspléland 2 have held that plaintiffs and'defendants"arefjointly entitled to one-third share in joint properties. The plaintiffs have to prove that the decrees passed in O'L'S.No..5'L:7l995 are not binding on the plaintiffs. 'Accordingly, plaintiffs are not entitled to partition and l7-psepfarate possession of 8/ 2431 share in the suit schedule llproperties. Therefore, the suit of the plaintiffs came to be dismissed. Aggrieved by the same, the plaintiffs have preferred this appeal.
l7
4. The learned counsel _ = T. plaintiffs/ appellants assailing the... impugned:lfjuldgnient K"
and decree contended all the pla=i.nt1'_schedule are the joint family propert'ie's.._Vthou'ghl are standing in the name of the:fir:sL-defendant and some are jointly in the nain_es_of and 2. They are all ancestral in the grand son of They are entitled for share in the suit filed by defenadants' father--defendant No.3 claiming! the in the name of first defen_dantl'are reizclusiye property and in the property in thelnames of second and third defendants to half share and in respect of the other properties, they are entitled to 1/ 3" share, the courthas granted a decree as prayed for holding that "ll" property standing in the name of the first defendant are exclusive properties and the second and third 'defendants in each are entitled to equal share and only in the joint family properties, the plaintiffs are entitled to 1/51" share. These are collusive decrees obtained by 18 fraud and the court below has not been able to properly appreciate the material on record and .c~or_n.rr'1itfVteV('l._ serious error in dismissing the suit. T heingl b the minors are not protected and therefore, the suitgfiled the rnaintainable and they are enititled_Vto a'decree prayed for in the light of the rrra-ter:i_al
5. Per _c*ontra~,"' .rficounsel for the defendants';'i"esp:ot:d'ents* the impugned judgrnent dd aforesaid pleadings and the rival contentions, "the points that arise for our " colnsidiération are :-
suit schedule properties are ancestral ""joint.17:u'hily properties belonging to the family'? hi AAf2\_Wh'ether a case for setting aside the judgment and "decree in O.S.Nos.52, 53 and 61 of 1995 is made out'?
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7. Re.Point No.1 :
It is not in dispute that suit in O.S.No.52/95 all "t'he'°first defendant-the wife oi';__Nanjun.dap_pa.,_»pT matter of the suit in O.S.NoV.6--ll/95. joint names of the second andathird: matter of the suit joint family properties. "vrerervfilled in the year 1995. The paééiéd in O.S.No.52/95 on 1.3.1997. "Slirriilarlyfin:xO,S.No.6l/95 is also decreed on 1.3.l997'.e.__' On the'.da.te_§ these two decrees came to be pas;_'s'e'd,. the p1.aintiffs were not born. O.S.No.53 / 95 was declaring the defendants 1 to 3 are share. The first plaintiff was born on prior to the date of decree whereas, the second_A'3~plaintifi' was born on 28.12.1999 i.e. after the vdecrree. In fact, the plaintiffs cannot have any grievance 'insofar O.S.No.53/1995 is concerned, because as the law stands today, even if it is an ancestral property the daughter is treated as a co--parcenor and all of them are entitled to 1 /3"' share. In fact, this decree is confirmed 20 by the High Court in the appeal-- RFA 545/_2_f)OO.
Insofar as O.S.No.52 / 95 is concerned, adn1ittecljly~»,tho'se properties stand in the name of the first T' the specific case of the plaintiffs' that for acquiring the said i Nanjundappa and theref'orev,4,i:l"as isl' flown from the nucleus._ of the theyl are also joint family properties, evidence is produced' of their contention, material on record shows and that is the reasonshe the court for the declaration that she theabsolute owner of the property and her L. ' «son iias no ri'11l, uvpi the same. Though the third contested the claim probably, better wisdom rn'ight-.f'hav:l'e prevailed on him and therefore, he did not copntestl the same. Though he chose to contest, he T"-rightly did not chose to file the objections. Therefore, "the said decree has attained finality. L 01 A 7.1 Therefore, in the absence ofVeyid.e11ce produced by the plaintiffs to purchase of property, which are standing iirher n'arr1e,V'--.. has flown from the joint fam'i}y';"».t,he saiqlpropertylcannot it be held to be the joint,ifainiilyTpropertyr; Similarly, O.S.No.61/95 is conlcerned,.lthey:'ta_.re."acquired in the joint names of _the_ second in which each of in this case, the plaintiffsvv to show that the of the said properties has flown the faiinlipilyllnucleus. Therefore, the said judgrimnt has also become final. Therefore, firstly, the l eyidlence the plaintiffs do not show that the "s1_ibje§:t»..t;l;:;';e;A:t«§:;;:: of the suit in o.s.No.52/1995 and are joint family properties. Even otherwise the plaintiffs were not even born when the was filed and decreed, much less when the "properties were acquired. Therefore, the plaintiffs if " "challenging the suit itself is not maintainable. », it/a 22
8. Re.Point No.2 : It is the specific case of» the plaintiffs that the third defendant, their protect the minors interest in the though he contested by filing the lstatenilentfl cross examine the plaintiffs adduced any evidence. the' decree is collusive. "Defendants l and 2 prevailed to contest.
None of these court based on the entire reieorfd has come to the collusion and winning over defendants l and 2 is not established. hose suits were filed by defendants 1 and 2 their legitimate right over the property. The are competent to go into the said question have delivered a judgment accepting their claim and it have granted decrees. Both the decrees are not i challenged by the third defendant. Both the decrees are i if "passed before the birth of the plaintiffs and therefore, no case is made out for setting aside these decrees.