Bangalore District Court
S.Ravikumar vs Govindareddy on 6 January, 2021
1
OS.No.9893/2006
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this the 6th day of January 2021
PRESENT
Sri.SADANANDA NAGAPPA NAIK, B.A.L., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.9893/2006
Plaintiffs: 1. S.Ravikumar,
S/o K.C.Subramanyam Reddy,
Aged about 31 years,
2. S.Ramesh,
S/o Subramanyam Reddy,
Aged about 29 years,
Both are R/at No.45,
Basavaraj Layout,
Jarganahalli, J.P Nagar,
6th Phase, Bangalore- 78.
[By Sri Gopal, Advocate]
/VS/
Defendants: 1.Govindareddy,
S/o Late Chinnabba Reddy,
Aged abut 48 years,
R/at No.2884, 15th A cross,
Banshankari 2nd Stage,
Bangalore -70.
2.Narasimha Reddy,
S/o Chinnabba Reddy,
2
OS.No.9893/2006
Aged about 65 years,
R/at No.51/1, 15th A cross,
Banashankari 2nd Stage,
Bangalore -70.
[PLACED EXPARTE]
3. Subramani Reddy,
[PLACED EXPARTE]
(SINCE DEAD BY Lrs.
Plf.No.1 & 2, Deft.7 & 8)
4. Smt.Kanthamma,
W/o Rangaiah Reddy,
D/o Chinnabbareddy,
Major, R/at Gangadanallur,
N.R.Pet Post, Athamakur,
Chittoor District. Andhra Pradesh.
5. Smt.Sarasamma,
W/o Muniswamy Reddy,
D/o Chinnabbareddy,
Major, R/at No.51/1,
15th A cross, Manjunathnagar,
Banashankari 2nd stage,
Bangalore -70.
6. Smt.Krishnamma,
W/o Kondareddy,
D/o Chinnabbareddy,
R/at Gangadanallur,
N.R.Pet, Athamkur,
Chittoor District, Andhra Pradesh.
7. Smt.Shanthi,
W/o Marukonda Reddy,
Aged about 36 years,
R/at No.55/2, 2nd Cross,
Siddappa Layout,
3
OS.No.9893/2006
Doddakallasandra Post,
Bangalore - 62.
[PLACED EXPARTE]
8. Smt.Bhagyamma,
W/o Late Chinnabbareddy,
Aged about 86 years,
C/o Smt.Kanthamma,
W/o Rangaiah Reddy,
R/at Gangadanallur Taluk,
Old Venkatapuram Village,
Chittoor Taluk, Andhra Pradesh.
(SINCE DEAD BY LRS. Deft.1 to 7 & 9)
9. Smt.Padma,
W/o K.C.Subramanya Reddy,
Aged about 55 years,
R/at No.45, Basavaraja Layout,
Jarganahalli, J.P.Nagar 6th Phase,
Bangalore - 78.
[PLACED EXPARTE]
10.Smt.C.G.Lakshmidevi Reddy,
W/o Govindareddy C.
Aged about 55 years,
R/at No.2884, 15th A Cross,
BSK 2nd Stage, Bangalore 70.
[Sri.Vishnu Hegde, Adv., for D1 &
10. Sri.G.C.P., Adv., for D4 & 6.
Sri.D.H./N.P., Adv., for D5.]
Date of institution of 13.11.2006
suit
Nature of the suit Partition & Declaration
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
4
OS.No.9893/2006
Date of the 06.03.2018
commencement of
recording of the
evidence.
Date on which the 06.01.2021
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 14 01 23
(SADANANDA NAGAPPA NAIK)
XVIII Addl.City Civil Judge, Bangalore.
J UD GME N T
The suit of the plaintiffs is for the relief of partition of the
suit schedule property, directing the defendants to effect
partition by metes and bounds and put them in their 1/3rd
share each in the suit schedule property;
To hold the partition deed dtd.21.5.1983 entered
between Children of late Chinnabbareddy and the registered
Release deed dtd.8.11.1999 said to have been executed by
defendant No.2, 3, 8 in respect of the suit schedule property
not binding in respect of plaintiffs and defendant No.7.
To hold the registered Gift Deed dtd.5.4.2012 executed
by 1st defendant infavour of his wife defendant No.10 is not
binding on the share of plaintiffs and defendant No.7 and for
costs.
5
OS.No.9893/2006
2. Shorn of unnecessary details, the material facts
leading to plaintiffs case as contended in the plaint are as
follows:
It is the contention of the plaintiffs that they, their father,
sister, uncle, aunty and the defendant herein jointly own and
possess the suit schedule property measuring 30 X 45 feet.
The suit schedule property is the ancestral property purchased
by their grandfather Chinnabba Reddy under registered sale
deed dtd.26.6.1964. Said Chinnabba Reddy had 3 sons and 3
daughters namely K.C.Narasimhareddy,
KC.Subramanyamreddy and G.Govindareddy, the defendants
Kanthamma, Sarasamma and Krishnamma. The plaintiffs are
the grandsons of Chinnabbareddy born through
K.C.Subramanyam Reddy. Defendant No.9 is the mother of
plaintiffs and defendant No.7. It is further contended that
said Chinnabbareddy died leaving behind the plaintiffs and
defendants. The defendant No.1 is the kartha of the family got
transferred all the documents concerning to the suit schedule
property in his name. Though the suit schedule property is
standing in the name of defendant No.1, he has no exclusive
right, title and interest over the same as the suit schedule
property is their ancestral property. It is further contended
that taking advantage of the documents stands in the name of
defendant No.1, on 20.9.2006, defendant No.1 attempted to
alienate the suit schedule property. Plaintiffs being
6
OS.No.9893/2006
coparceners resisted the same. The defendant No.1 had posed
threat that he will sell the suit schedule property.
It is further contended that defendant No.3 is the father
of plaintiffs has got 1/3rd share in the suit schedule property.
When the plaintiffs demanded for partition and to allot their
share, defendants not taken action. It is further contended
that plaintiffs came to know after filing of the written
statement,1st defendants had introduced some created and
manipulated documents in order to deprive the rights and
share of plaintiffs. It is further contended that the alleged
partition said to have taken place between the children of
Chinnabbareddy on 21.5.1983 and the property have been
fully settled and the father of the plaintiffs ie., 3 rd defendant
said to have entered into alleged release deed dtd.19.8.1999 in
respect of suit schedule property are all false. It is further
contended that the 1st defendant in his written statement
alleges that the 3rd defendant has addicted to alcohol and
other bad habits, as such the 3rd defendant has not
safeguarded the welfare of the plaintiffs. The 1 st defendant
taking advantage of the 3rd defendant, stealthily managed to
obtain the alleged release deed from 3 rd defendant and also
playing fraud and misrepresentation. The 3 rd defendant do not
have any manner of exclusive right or title to deal with the suit
schedule property.
It is further contended that on going through the recitals
7
OS.No.9893/2006
of release deed dtd.19.8.1999, there is no whisper about the
payment of consideration passed on to the 3 rd defendant. It has
no legal sanctity in the eye of law. The 1 st defendant being the
only educated person and worldly knowledge, misused his
status and obtained the alleged document. It is further
contended that during the pendency of the suit, the 1 st
defendant clandestinely and surreptitiously gifted the suit
schedule property, in favour of his wife under gift deed
dtd.5.4.2013 and it is hit by doctrine of lispendens and the
same is not binding on the plaintiffs. It is further contended
that the 1st defendant in order to take revenge against the
plaintiffs, indulged in illegal acts by filing false complaint and
the same has been registered in CC.No.15145/2002 on the file
of 2nd ACMM court, Bangalore, later the same was settled
before Lokadalath. It is further contended that the plaintiffs
being the grand children of Chinnabbareddy and sons of
K.C.Subramanyam Reddy, they are entitled for 1/3rd share
each in the 1/3rd share of their father in the suit schedule
property. Defendant no.1 and K.C.Narasimhareddy and his
family are entitled to 1/3rd share each. Hence, prayed to
decree the suit.
3. Defendant No.2, 3, 7 & 9 remained absent and were
placed exparte. Defendant Nos.1, 4, 6, 5, 10 appeared through
their counsel. During the pendency of the suit, defendant No.3
& 8 died and their legal heirs was brought on record.
8
OS.No.9893/2006
The defendants No.1, 4, 6 & 10 have filed their written
statements. Defendant No.5 filed memo adopting the written
statement of defendant No.1.
4.The defendant No.1 in his written statement denied the
plaint averments and contended that suit schedule property is
his absolute property and he is the absolute owner and
possession of the same. Plaintiffs have no rights as well as
locus standi to file the suit. It is further contended that there
was a partition effected between the children of late
Chinnabbareddy on 21.5.1983 and the properties have been
settled between them. Thereafter, the respective sharers have
acquired the rights independently in their respective
properties. The suit schedule property fallen to the share of 1 st
defendant. It is further contended that even thereafter
Bhagyamma, K.C.Narasimhareddy and K.C.Subramaniam
have also confirmed his absolute right and executed the
registered Deed of Release on 19.8.1999. The revenue
documents and katha in respect of suit schedule property
standing in his name. It is further contended that the father of
plaintiffs already acquired the share in the property of late
Chinnabbareddy and plaintiffs have nowhere concerned about
their share from the defendant since there was partition
asserted in the family members of Chinnabbareddy. It is
9
OS.No.9893/2006
further contended that Chinnabbareddy and Bhagyamma had
3 male children by name K.C.Narasimhareddy,
KC.Subramaniam father of plaintiffs and defendant No.8.
Partition was asserted between the wife of Chinnabbareddy
and above said 3 sons. It is further contended that earlier the
suit schedule property was a vacant land, the defendant No.1
himself spent huge amount for the construction of residential
premises. The defendant No.1 himself being the construction
engineer and put up the residential premises and completed
the construction in the year 1984-85 by spending his hard
earned money and started to reside in the suit schedule
property. The plaintiffs have filed this suit to extract money
with malafide intention. The court fee paid is insufficient. On
the above grounds, prayed to dismiss the suit.
5. The defendant No.4 & 6 in their written statement,
denied the plaint averments and reiterated the contentions
taken by 1st defendant in his written statement. They have
pleaded about earlier partition dtd.21.5.1983 and also about
the release deed dtd. 19.8.1999. Further contended that they
are not necessary parties to the suit. It is further contended
that most of the properties allotted to the share of plaintiff's
father are sold to third persons, then the plaintiffs have filed
the present suit. On the above grounds, prayed to dismiss the
suit.
10
OS.No.9893/2006
6. The 10th Defendant in her written statement denied the
plaint averments and reiterated the averments made by 1 st
defendant in his written statement. It is further contended that
plaintiffs colluded with their father 3 rd defendant and have
suppressed the true facts. It is further contended that under
panchayat parikath dtd.21.5.1983, mother of 1 st defendant
acquired and allotted Sy.No.168.12 measuring 0.21 cents with
vacant land and old house attached to it and after her death,
the same was divided equally among her sons. The said
property is mentioned as A schedule in the said partition. The
1st defendant having 1/3rd share in Sy.No.168.12 property
katha No.201, Athmakor village. The 2nd defendant being the
elder brother of 1st defendant has got allotted B schedule
property and katha in respect of said properties were mutated
in his name. The 3rd defendant - father of plaintiffs was
allotted C schedule property in the said partition ie.,
Sy.No.167.8 measuring 0.37 cents of said village. The 3 rd
defendant sold the same to the 3rd persons, and had received
entire sale consideration. Prior to the partition, father of
plaintiffs had availed loan from Smt.Sarojamma and
Krishareddy, failed to repay the same and had requested the
1st defendant to clear the same. It is further contended that 1 st
defendant was allotted D schedule property in Sy.No.45/2
katha No.2884, 15th A cross, Banashankari 2nd stage,
11
OS.No.9893/2006
Bangalore, vacant land and shed. The 1st defendant spent huge
amount for the upliftment of the family. The suit schedule
property was allotted to the 1st defendant and on the date of
partition since 1983, he had acquired complete right over the
same. On 19.8.1999, Smt.Bhgyamma, defendant No.2 & 3
have executed the registered release deed in favour of 1 st
defendant and confirmed his right, title and possession over
the suit schedule property. It is further contended that on
5.4.2012, the 1st defendant has executed the registered gift
deed in favour of defendant No.10 and conveyed the suit
schedule property with right of possession. Accordingly, the
revenue records were also transferred in her name and she is
paying property tax to BBMP. The defendant No.10 is in
physical possession and enjoyment of the suit schedule
property. On the above grounds, prayed for dismissal of the
suit.
7. On the basis of the above pleadings, the predecessor in
office has framed the following issues :
1.Whether the plaintiffs prove that the suit schedule property is the ancestral property and plaintiff and defendants are the coparceners?
2. Whether the defendant No.1 proves that the suit schedule property is his absolute property?
3. Whether the plaintiffs prove that the suit 12 OS.No.9893/2006 schedule property is in joint possession of the plaintiffs and defendants as joint owners?
4. Whether the plaintiffs prove the partition dtd.21.5.1983 is created and fabricated in nature?
5. Whether the plaintiffs prove that the release deed dtd.19.8.1999 is obtained by fraud and misrepresentation without any exclusive right over the property?
6. Whether the plaintiffs prove that the gift deed dtd.5.4.2012 executed by 1st defendant in favour of his wife defendant No.10 is created without having any exclusive right over the property?
7. Whether the defendants prove that the court fee paid is insufficient?
8. Whether the defendants prove that suit is hit by law of limitation?
9. Whether the plaintiffs prove that they are entitled for 1/3rd share in the suit schedule property?
10. Whether the plaintiffs prove that the partition deed dtd.21.5.1983 and release deed dtd.8.11.1999 are not binding on them?
11.Whether the plaintiffs prove that the gift deed is not binding on them?
13OS.No.9893/2006
12. Whether the plaintiffs prove that they are entitled to the relief claimed?
13. What order or decree?
8. Plaintiffs got examined 1st plaintiff as PW1, got marked the documents at Ex.P1 to P18 and closed their side. The Defendant No.1 is examined as DW1, and got marked document at Ex.D1 to D9 and closed their side.
9. Heard the arguments on plaintiffs and defendants. Perused the materials placed on record.
The learned counsel for the plaintiffs has relied on the following ruling:
1.AIR 1989 Mad 257 - P.Balakrishnan & Ors. Vs The District Registrar.
2.2012(5) KCCR 4267 - K.Manjunath Vs. Basavaraj & others.
3. ILR 2010 KAR 5713 - Hallera Dyamappa & others Vs. Tarihalli Karibasappa.
4. AIR 1971 SC 1070 - Jupudi Kesava Rao Vs. Pulavarthi Venkatasubbarao & Ors.
5. AIR 2004 RAJ.70 - Dulichand Vs. Bhandari Dass & Others.
6. AIR 1989 ALL.133 - Balkrishna Das Agarwal Vs. Smt.Radha Devi & Others.
7. AIR 2017 PATNA 85 - Sabitri Devi & Ors. Vs. Lakhan @ 14 OS.No.9893/2006 Ramjiwan Prasad & Ors.
8. MANU/SC/8502/2008 - Avinash Kumar Chauhan Vs. Vijay Krishna Mishra.
9. AIR 2019 AP.93 - V. Madhusudhan Rao & Ors. Vs. S.Nirmala Bai Satyanarayana Rao & Ors.
10. MANU/SC/0570/1987 - Thamma Venkata Subbamma (Dead) by Lr. Vs. Thamma Rattamma & Ors.
11. AIR 1967 SC 569 - Ammathayee @ Perumalakkal & Anr.Vs. Kumaresan @ Balakrishnan & Ors.
12. AIR 2000 KAR.27 - Babu Mother Savavya Navelgund & Ors. Vs.Gopinath
13. AIR 2018 P & H 197 - Gurdev Singh & Ors. Vs. Ajmer Singh & Ors.
14. AIR 1997 SC 1966 - Sunder Das & Ors. Vs. Gajananrao & Ors.
15. LAWS(KAR) 2008 10 24 - K.C.Laxmana Vs. K.C. Chandrappa Gowda
16. AIR 1997 KAR 275 - V.R.Kamath Vs. Divisional Controller, KSRTC & Ors.
The learned counsel for the defendant No.1 & 10 has relied on the following ruling:
1. (1976) 3 SCC 119 - Kale & Ors. Vs. Deputy Director of Consolidation & Ors.
2. (2018) 14 SCC 814 - Roshan Singh & Ors.Vs. Zile Singh & Ors.15
OS.No.9893/2006
3. AIR 2005 KAR 426 - Ranganayakamma Vs. K.S.Prakash.
4. AIR 1951 SC 280 - Bishundeo Narain & anr., Vs. Seogeni Rai & Others.
5. AIR 1976 SC 163 - Afsar Shaikh & Another Vs. Soleman Bibi & Others.
I have considered the rulings of both the parties and the arguments advanced by both counsels with utmost reverence.
10. My findings on the above issues are as under:
Issue No.1 : In the negative
Issue No.2 : In the affirmative
Issue No.3 : In the negative
Issue No.4 : In the negative
Issue No.5 : In the negative
Issue No.6 : In the negative
Issue No.7 : In the negative
Issue No.8 : In the negative
Issue No.9 : In the negative
Issue No.10 : In the negative
Issue No.11 : In the negative
Issue No.12 : In the negative
Issue No.13 : As per final order,
For the following:
REA S ON S
11. Issue Nos.1 to 6 & 10:- As these issues are
interlinked with each other, they are taken up together for consideration.
Before adverting to the other factual aspects of this case, let me analyze few aspects with regard to Partition and 16 OS.No.9893/2006 inheritance among Hindus. On the division of property, Yagnavalkya Smrithi states as follows:
As per the above text, in Mitakshara Law, property is divided into two classes such as Apratibandh Daya (unobstructed heritage) and Sapratibandh Daya (obstructed heritage). The property in which the son, grandson and great grandson had a birthright was called unobstructed heritage, which means that without any obstruction, the male issue had a right by birth. This was also called the doctrine of son's right by birth in joint family property where each son on his birth acquired an equal interest with his father in the joint family property. In the case of unobstructed heritage, as soon as the birth occurs, a person becomes the coparcener of the property by inheritance. The same has been reiterated in Art.216 of Mulla on Hindu Law - 23rd edition.
On the other hand, the property in which, the right accrued not by birth but on the death of the last owner without leaving male issue was called obstructed heritage. In a obstructed heritage when a person having a son inherits the property from his brother, till death of his father, no right will get accrued to the son and such right will be just a chance of 17 OS.No.9893/2006 an heir apparent/ spes-successionis. The unobstructed heritage devolved by the rule of survivorship, the obstructed heritage by succession. However, after coming into force of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), as on 9.9.2005 the law recognise the inheritance only by way of succession and not by survivorship.
Art.212 of Uncodified Hindu Law classifies the property as joint family which is synonymous with coparcenery property and separate property which includes self-acquired property. Joint family property is again has been divided as two types. Ancestral property (Art.221 to 223) and separate property of coparceners thrown into the common coparcenary stock.
It is also settled principle of law that there can be a joint family without a property. However, to constitute a coparcenary, there must be a property. There is also a presumption as to joint family that the Joint Family is joint in food, worship and estate, unless there is proof to the contrary. However, there is no presumption as to joint family property. The burden lies upon the person who asserts that a particular property is joint family or self-acquired property.
Section 4(1) (a) Hindu Succession act has saved the uncodified Hindu Law to the extent it is not inconsistent with the Hindu Succession Act 1956.
Hindu Succession act also provides two separate 18 OS.No.9893/2006 schemes of succession for a male under Section 8 and female intestate under section 15 and also prescribe separate rules of devolution of property in case of a childless married woman depending upon the source of acquisition of the property. Section 14 of Act makes any property possessed by a Hindu female into her absolute property, to be held and enjoyed by her in the same way in which her male counterpart could.
Prior to passing of the Landmark decision in Vineeta Sharma v. Rakesh Sharma dated 11.8.2020 reported in 2020 SCC OnLine SC 641, the courts in India, relied on the dictum of Hon'ble Supreme Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343 and Mangammal v. T.B. Raju, (2018) 15 SCC 662 to conclude that a daughter has the right in the coparcenary property if the father and daughter were alive as on 9.9.2005. However, after the decision in Vineeth Sharma case(Supra), Para 129 of the case made it clear that the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
12. Keeping these principles in mind, let me analyze, whether the plaintiffs are able to establish before the court that they are entitled for partition of the suit schedule 19 OS.No.9893/2006 property 1/3rd share each on the share of 3 rd defendant as prayed for or otherwise.
13. In this case, there is no dispute with regard to relationship between the parties. The lis brought before court lies in a narrow compass. It is the contention of the Plaintiffs that Suit schedule property is the ancestral and joint family property. The 1st Defendant has got executed release deed from their father, grandmother and uncle without consideration and without making the plaintiffs as consenting party though they were major at the time of release deed. Therefore, sought for 1/3rd share each in the share of 3 rd defendant. But the Defendant No.1 and 10 who are the lonely contestants in the case states that it is their absolute property. It is the contention of the defendant No.1 and 10 that there was a oral partition on 21.5.1983. As per the oral partition, suit schedule property fell to the share of 1 st defendant. Thereafter, 1st Defendant executed Gift Deed infavour of 10th defendant. Suit is bad for non-inclusion of all the properties.
As a settled principle of law, no particular number of witnesses shall in any case be required for the proof of any fact. Similarly, no particular number documents are required to prove any fact. It is the quality and not the quantity of evidence that has to be looked into for proof of any fact. In the 20 OS.No.9893/2006 present case, even if single document of the Plaintiffs is more probable than voluminous records of defendants, then the court is bound to uphold the contention of Plaintiffs.
14. The plaintiffs in their pleading have contended that plaintiffs, their father, sister, uncle, aunty and the defendants herein jointly own and possess the suit schedule property which is the ancestral property purchased by their grandfather Chinnabba Reddy under registered sale deed dtd.26.6.1964. Said Chinnabba Reddy had 3 sons and 3 daughters. The plaintiffs are the grandsons of Chinnabbareddy born through K.C.Subramanyam Reddy (Defendant no.3). Defendant No.9 is the mother of plaintiffs and defendant No.8 is the grandmother. It is further contended that said Chinnabbareddy died leaving behind the plaintiffs and defendants as such Plaintiffs father has got 1/3 rd share in the property. The 1st defendant was the kartha of the family got transferred suit schedule property in his name after execution of Release deed from Plaintiffs father 3 rd defendant. 3rd Defendant was drunkard and has not safeguarded the interest of Plaintiffs. When the alleged released deed is executed, the plaintiffs were majors and they were not made as parties though the property was a joint family property. The alleged oral partition on 21.5.1983 is not binding upon them. During the pendency of the suit, the 1st defendant clandestinely and surreptitiously gifted the suit schedule property, in favour of 21 OS.No.9893/2006 his wife under gift deed dtd.5.4.2013 and it is hit by doctrine of lispendens and the same is not binding on the plaintiffs. It is further contended that the plaintiffs being the grand children of Chinnabbareddy and sons of K.C.Subramanyam Reddy, they are entitled for 1/3rd share each in the 1/3rd share of their father in the suit schedule property. Hence, prayed to decree the suit.
15. The learned counsel Sri.Gopal appearing on behalf of plaintiffs has argued that plaintiffs and defendants constitute a joint family. The suit schedule property is an ancestral property purchased by Sri.Chinnabbareddy grandfather of the plaintiffs by virtue of the sale deed dtd 26.6.1964. Sri.Chinnabbareddy had 3 sons and 3 daughters. Plaintiffs are the sons of K.C.Subramanyam Reddy and grandsons of late Sri.Chinnabbareddy. It is argued that the grandfather of plaintiffs died intestate leaving behind the plaintiffs, plaintiff's sisters and other family members. Subsequent to the death of Sri.Chinnabbareddy, 1st defendant was the kartha of the joint family and he transferred all the properties in his name. All the documents were in the possession of the 1st defendant. Taking advantage of that, he tried to alienate the property on 29.2.2006. It is argued that plaintiffs have got 1/3rd share each in the 1/3rd share of their father 3 rd defendant. It is argued that during the pendency of the suit, with a ulterior motive, to knock off the valuable right, title and interest and 22 OS.No.9893/2006 share of the plaintiffs, 1st defendant gifted the property in favour of defendant No.10 by gift deed dtd.5.4.2013. It is argued that Sri.Chinnabbareddy died on 11.10.1975. Prior to that, there was a release deed executed by Bhagyamma, K.C.Narasimhareddy and K.C.Subramaniam (father of plaintiffs). In the said release deed, there is no mention of the plaintiffs. In the release deed, no amount that has been shown to have paid to the plaintiffs. Plaintiffs were major at the time of execution of the release deed. Plaintiffs have also taken contention that defendant No.10 is not examined before court. Defendants 1 & 10 have colluded together. As per Ex.P5 gift deed, same reveals that in order to clear the huge debt, property has been gifted. The affidavit filed by defendants are defective. No registration number has been mentioned in the notary affidavit. The contention of the defendants that plaintiff's father was a mason and false case has been filed to seek the share in the property is not tenable. The contention of the defendants that there are no documents produced by the plaintiffs to show that plaintiffs have constructed the house in the suit schedule property is not tenable. In fact, all the plaintiffs and defendants have together constructed the house. It is also argued that the defendants have obtained the release deed from Bhagyamma grandmother of plaintiffs and defendant No.8 after obtaining her LTM. The said release deed are suspicious. There appears errors and corrections. As per 23 OS.No.9893/2006 the Karnataka Registration Rules, if writings has to be erased there has to be initialed by the sub-registrar. Bhagyamma was uneducated, she do not know about the registration of the document. Defendants have brought her from Chittoor to Bangalore for registration purpose only. Defendants have colluded with BBMP and obtained katha in their name. At the time of obtaining katha, defendants have not sought any no objection from the plaintiffs. It is argued that plaintiff's father 3rd defendant was a drunkard and their mother defendant No.9 was illiterate and obtained the release deed. It is argued that defendant No.5 has colluded with the 1st defendant in creating the document. Defendant No.4 has not contested the matter. Defendant No.1 & 10 only have contested, there is lot of improvement in the affidavits filed by defendant No.1 & 10. plaintiffs are entitled for share in the property. Therefore, prayed to decree the suit.
16. Per contra, it is the contention of the 1 st defendant that that suit schedule property is his absolute property and he is the absolute owner and possession of the same. There was a partition effected between the children of late Chinnabbareddy on 21.5.1983 and the properties have been settled between them. Thereafter, the respective sharers have acquired the rights independently in their respective properties. The suit schedule property fallen to the share of 1 st defendant. It is further contended that even thereafter 24 OS.No.9893/2006 Bhagyamma, K.C.Narasimhareddy and K.C.Subramaniam have also confirmed his absolute right and executed the registered Deed of Release on 19.8.1999. The revenue documents and katha in respect of suit schedule property standing in his name. The father of plaintiffs already acquired the share in the property of late Chinnabbareddy and plaintiffs have nowhere concerned about their share from the defendant since there was partition asserted in the family members of Chinnabbareddy. It is further contended that earlier the suit schedule property was a vacant land, the defendant No.1 himself spent huge amount for the construction of residential premises and put up the residential premises and completed the construction in the year 1984-85 by spending his hard earned money and started to reside in the suit schedule property. The plaintiffs have filed this suit to extract money with malafide intention. The court fee paid is insufficient. The defendant no.10 being wife of the 1 st defendant took the same contention. The defendant No.4 & 6, reiterated the contentions taken by 1st defendant in his written statement. They have pleaded about earlier partition dtd.21.5.1983 and also about the release deed dtd. 19.8.1999. It is further contended that most of the properties allotted to the share of plaintiff's father are sold to third persons, then the plaintiffs have filed the present suit.
17. The learned counsel Sri.Vishnu Hegde, appearing on 25 OS.No.9893/2006 behalf of the defendant No.1 & 10 has argued that as per plaint averments, partition deed has been entered on 21.5.1983. Same was not challenged within the time of limitation. Therefore, the suit is barred by limitation. The present suit is also barred for non-inclusion of all the properties. Plaintiffs have also not shown whether the release deed got entered due to coercion, undue influence, fraud or misrepresentation. No such plea has been pleaded in the plaint. However, the release deed is challenged by 3 rd persons. Hence, it is not maintainable. Plaintiffs have taken a contention that the cause of action for filing the suit arose on 20.9.2006. However, present suit is filed on 13.11.2006. Same is barred by law. It is contended by plaintiffs that the suit schedule property is the absolute property of Chinnabbareddy. There was a oral partition in the joint family. Partition deed has been entered as per document dtd.21.5.1983 and there was also release deed on 19.8.1999. It is the defendants 1 & 10 who have built the house in the suit schedule property. Plaintiffs have not at all contested the said contention of the defendants. It is argued that present suit schedule property is part of oral partition that has taken place in the year 1983. No registration is required for recording oral partition. Same need not be registered as per Registration Act. Plaintiffs have taken a contention that at the time of release deed and change of katha, they have filed 26 OS.No.9893/2006 objection. They had the knowledge in the year 1999 itself. Therefore, the present suit is barred by law. Plaintiffs have also admitted in their cross examination that there are many ancestral properties which are not included in the present suit. It is vehemently argued that there is already a oral partition that has been taken place in the year 1983. Therefore, the present suit is not maintainable.
18. I have perused the documents produced on behalf of the plaintiff. Ex.P1 is the certified copy of the sale deed dtd. 16.6.1964 same is not disputed. Ex.P2 is the office copy of the legal notice issued by plaintiffs to 1 st defendant Govindareddy for seeking partition in the property. Ex.P5 is the gift deed executed by 1st defendant infavour of defendant No.10 transferring the suit schedule property in her name. Ex.P6 is the release deed dtd.19.8.1999 executed by Smt.Bhagyamma w/o Chinnabbareddy(grand mother of plaintiffs) K.C.Narasimhareddy and K.C.Subramanyamreddy sons of Chinnabbareddy releasing the suit schedule property in favour of defendant No.1.
19. On perusal of the documents produced on behalf of the defendants, Ex.D1 is the certified copy of the sale deed dtd.30.7.1984. Ex.D2 is the certified copy of the release deed dtd.19.8.1999 executed by Smt.Bhagyamma, K.C.Narasimhaiah Reddy and K.C.Subramaniam Reddy in 27 OS.No.9893/2006 favour of 1st defendant. Ex.D3 is the Certificate issued by BBMP, Ex.D4 is the Encumbrance certificate, Ex.D5 is the certified copy of gift deed dtd.5.4.2012 executed by 1 st defendant in favour of defendant No.10. Ex.D6 to 8 are the Tax paid receipts and Ex.D9 is the certified copy of the order sheet in CC.15145/03.
20. Plaintiffs have got examined the 1 st Plaintiff as the PW-1 in this case and he has reiterated the contents of plaint. He has admitted that Defendant no.3 is his father and he was residing with his father till his death. He has also admitted the suggestion that apart from the suit schedule property, he has not included other family properties in the case. He has further admitted that his grandmother was residing in the family house at Chittoor till her death. His father and children had come down to Bengaluru now about 35 years ago. He has further admitted that the properties bearing Sy.No. 68/12 measuring 21 cents, Sy. No. 189/3 measuring 3 cents, Sy.No. 17 measuring 53 cents, Sy.No. 188/6 measuring 6 cents, 173/2 measuring 7 cents, Sy.No. 15 measuring 4 cents, Sy.No. 20 measuring 10 cents, 23 measuring 4 sends, Sy.No. 232 measuring 26 cents, Sy.No. 175/9 measuring 5 cents, Sy.No. 167/9 measuring 11 cents, Sy.No. 9/B measuring 13 cents, Sy.No.167/8 measuring 37 cents situated at Narasingaramapet, Athmakur, Chittoor taluk and district had not been shown in the present suit schedule and he has no 28 OS.No.9893/2006 impediment to include these properties. He has pleaded ignorance to partition took place on 21.05.1983. He has further stated that he has not made any efforts to obtain the revenue documents in connection to the properties which are referred in the written statement of defendant No. 1 and 10. He has further admitted that the suit schedule property had been given to Govinda Reddy by Bhagyamma, Narasimha Reddy and his father through a release deed dated 19.08.1999. He has further admitted that himself and his father are not in actual possession of the suit schedule property since from 1999. He has not ascertained what is pleaded by defendant No.1 in his written statement.
He has admitted that the suit schedule property is the property shown in the release deed. He do not know whether the property which had fallen to the share of defendant No. 1 through the partition dated 21.05.1983 is the very same property which had given under the release deed. Further admitted that on the basis of the release deed, defendant No. 1 had executed gift deed in favour of his wife i.e. defendant No.
10. and also admitted the revenue documents are in the name of defendant No. 10.
21. On the other side, Defendant No.1 was got examined himself as DW1. He has stated that he is residing in Bangalore along with his wife. He never resided at Chittoor.
29OS.No.9893/2006 The khata was mutated in his name on the basis of palu parikath. The said parikath took place in the year 1975 and he has further admitted that the said parikath is unstamped and unregistered. He has admitted that Bhagyamma is an uneducated lady and she knows only to talk in Telugu language and unable to understand English language and further admitted that it is not noted in Ex.P6 that the contents therein are read over and explained to defendant No.8 - Bhagyamma in Telugu language. Further admitted that in Ex.P6, it is recited that the property is inherited by Chinnappa Reddy and they are in joint possession and enjoyment of the property. It is also admitted that it is also recited that the releasors and releasee as the co-owners of the property had jointly inherited from late Chinnappa Reddy. Also admitted to a suggestion that it is also recited all the co- owners had all rights over the property.
22. In the above circumstances, whether the plaintiffs have established that the suit schedule property is a joint family/ancestral property and they are entitled for 1/3 rd share each in the share of 3rd defendant in the suit schedule property or whether the 1st and 10 defendant prove that there was oral partition and suit schedule property is the absolute property, we may refer to the relevant provision of law and the case law on the subject. The relevant provisions and case 30 OS.No.9893/2006 laws are extracted hereunder for ready reference.
6 Devolution of interest in coparcenary property. --
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by 31 OS.No.9893/2006 testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-
deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre- deceased son or a pre-deceased daughter, as the case may be.
Explanation. --For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu 32 OS.No.9893/2006 Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation. --For the purposes of clause (a), the expression "son", "grandson" or "great-grandson"
shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. --For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons Section 8. General rules of succession in the case of males.--
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in 33 OS.No.9893/2006 class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Section 9. Order of succession among heirs in the Schedule.--
Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
THE SCHEDULE [Section 8] HEIRS IN CLASS I AND CLASS II CLASS I Son; daughter; widow; mother; son of a pre- deceased son; daughter of a pre-deceased son; son of a predeceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a predeceased son of a pre-deceased son; daughter of a pre-deceased son of a pre- deceased son; widow of a pre-deceased son of a pre-deceased son.
CLASS II I. Father. II. (1) Son's daughter's son, (2) son's daughter's 34 OS.No.9893/2006 daughter, (3) brother, (4) sister. III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter. IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter. V. Father's father; father's mother. VI.. Father's widow; brother's widow. VII. Father's brother; father's sister. VIII. Mother's father; mother's mother. IX. Mother's brother; mother's sister. Explanation : In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.
In Mulla, Hindu Law, 23rd Edn. Art.220 - Incidents of separate or self acquired property at page 326 Incidents of separate or self-acquired property- A Hindu, even if he be joint may possess separate property. Such property belongs exclusively to him. No other member of coparcenery, not even his male issue, acquires any interest in it by birth. He may sell it or he may make a gift of it or bequeath it by Will to any person he likes. It is not liable for partition, on his death intestate, it passes by successors to his heirs and not by survivorship to coparceners.
In Mulla, Hindu Law, 23rd Edn. Article 231 Presumption as to coparcenary and self-acquired property, pp. 346 and 353. To render the property joint, the plaintiff must prove that family was possessed of some property, with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with 35 OS.No.9893/2006 joint family funds, such as proceeds of sale of ancestral property or by joint labour.
In Mulla, Hindu Law, 23rd Edn. Article 231 Presumption as to coparcenary and self-acquired property , pp. 349.
It is thus an established concept that mere existence of a joint family cannot raise presumption that such family owns property jointly. A person asserting the existence of joint family property has to prove nucleus with such property could be acquired. It is only then such property could be presumed to be joint.
In Srinivas Krishna Rao Kango v. Narayan Devji Kango case reported in AIR 1954 SC 379 it is held that:
Proof of the existence of joint family does not lead to the presumption that the property held by any member of the family is joint. The initial burden rests upon the one who asserts any item of property as joint by establishing the said fact leading satisfactory evidence that at the time, the family possessed some joint property which from its nature and relative values may have formed, the nucleus from which the property in question may have been acquired. Then only the burden shifts to the party asserting self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property and from out of his income from independent source.
In the case of Mangal Singh v. Hakesh reported in AIR 1958 All 42.36
OS.No.9893/2006 In that case it was found that both the ancestral property of the family and the self-acquired properties were utilized for acquiring the properties in dispute. It was held that whatever may be the extent of the contribution of the acquiring member himself out of his self-acquired fund, if he takes the aid of any portion of joint or ancestral property in acquiring the property however small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by himself as self-acquisition. It was observed that the extent of his contribution or that of the family fund is immaterial. If any help is taken from the family property it is enough to make the self-acquired property, the property of the joint family.
In a three bench decision of Hon'ble Supreme Court in the case of Mallappa Girimallappa Betgeri And Others vs. R. Yellappagouda Patil And Others reported in AIR 1959 SC 906 observed as follows:
18. Before proceeding further it will be appropriate to observe that it is a well-established principle of Hindu Law that there is no presumption that if there is a joint Hindu family, it may be presumed to have been possessed with joint family funds or property.
Existence of joint family does not by itself leads to a presumption that the joint family is possessed of joint family property or a particular item of property is the joint family property. It is well-settled that even a member of the joint family can have his individual, separate property, the burden lies and rests upon the shoulder of the party who asserts that an item or an item of property, moveable or immoveable, is or has been the joint family property, 37 OS.No.9893/2006 to establish that fact by evidence. But, once it is established that the joint family is possessed of some joint family property which, from its nature and relative value, could have formed the nucleus from which the property in question or property in dispute may have been acquired, then and then only the burden shifts on the party alleging the property in dispute to be self-acquired property to establish affirmatively that the property was acquired without the aid of joint family property. If the Kartha or the Manager of a Hindu Joint Family acquires any property in his name or there also exists joint family property which could provide the nucleus and it is shown that the Kartha has shown no independent source of income, in those circumstances, no doubt, presumption may be raised of that the property in question to be the joint family property. Reference in this regard may be made to the decision of their Lordships of the Supreme Court in the case of Srinivas Krishna Rao Kango v. Narayan Devji Kango
- AIR 1954 SC 379 as well as to the decision of the Supreme Court in Mallappa Girimallappa Betgeri v. Ramgonda Yellappagouda Patil - AIR 1959 SC 906 and also to the decision of the Supreme Court in Kuppala Obul Reddy v. Bonala Venpata Narayana Reddy - AIR 1984 SC 1171. It is also well-settled that if in a case a party alleges the suit property to be the self-acquisition and proves and shows that the ancestral lands or ancestral properties are intact and the income therefrom may have been used for the maintenance of the members of the family, then the party alleging the property to be self-acquired property is taken to have discharged the burden.
In Adiveppa v. Bhimappa reported in (2017) 9 SCC 586, (2017) 4 SCC (Civ) 678 wherein it was held that: (SCC P. 589, 38 OS.No.9893/2006 para 19)
19. It is a settled principle of Hindu Law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. (See Mulla, Hindu Law, 22nd Edn. Article 231 Presumption as to coparcenary and self- acquired property, pp. 346 and 347).
Sir Dinshah Mulla in his Treatise on Hindu Law, 12th edition, at page 332, in paragraph 227, has stated the position thus:
Property which was originally the separate or self- acquired property of a member of a joint family may become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to waive his separate rights must be established. Separate property thrown into the common stock is subject to all the incidents of joint family property.
In Appalaswami v. Suryanarayanamurti & Ors. Reported in AIR 1947 PC 189, The Privy Council held:
That the Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family 39 OS.No.9893/2006 does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
In Arshnoor Singh vs. Harpal Kaur (AIR 2019 SC 3098), it was held by the Hon'ble Supreme Court that, Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors up to three degrees above him, then his male legal heirs up to three degrees below him, would get an equal right as coparceners in that property.
In Maktul v Mst. Manbhari and Others reported in AIR 1958 SC 918, it was held by the Hon'ble Supreme Court that The only property that can be called ancestral property is property inherited by person from father, grandfather and great grandfather. This implies that only that property which has flown undivided across 4 generations is called ancestral property.
In Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, reported in (1986) 3 SCC 567, it was held that 40 OS.No.9893/2006 After passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. It is also observed that :
Under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him.
In Bhanwar Singh Vs. Puran reported in (2008) 3SCC 87, it was held by Supreme Court that Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with other in inheritance in the estate of common ancestor. Coparcenary is a narrower body from than the Joint Hindu Family and before commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used acquire by birth an interest in the coparcenary property. a coparcener has no definite share in the coparcenary property but he has an undivided interest in it 41 OS.No.9893/2006 and one has to bear in mind that if enlarges by deaths and diminishes by births in the family. It is not static.
In Uttam vs Subagh Singh, reported in AIR 2016 SC 1169 has re-laid the Law on to the Concept of Ancestral Property. Apex Court ruled that a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act, 1956, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants. In another judgment of Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that After coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property/ joint family property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
In D.S.Lakshmaiah and another - vs- L.Balasubramanyam and another reported in 2003 (10) SCC 310, 2003 AIR (SC) 3800, There is no legal presumption of a property being joint family property only on account of existence of joint Hindu Family. The one who asserts that it is a joint family property must prove that there was a nucleus with which the property was acquired. In 42 OS.No.9893/2006 case there is joint family nucleus, the burden shifts on the one who claims that the property is a self- acquired property to prove that it is a self-acquired property of his own.
In the decision of the Apex Court reported in AIR 1968 SC 1276 in the matter of G.Narayana Raju (dead) by his legal representative -vs- G.Chamaraju and others it is held that, The self-acquired property of a member of the joint family can become coparcenery, if the coparcener voluntarily thrown the property in the joint stock of the joint family property. In this case, there is no such claim nor any joint family or joint family property.
The Apex Court in G. Narayana Raju's case (supra) held thus :
"It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate."
In Surender Kumar vs Dhani Ram reported in AIR 2016 Delhi 120 Delhi High Court ruled-
5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, 43 OS.No.9893/2006 Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that afte coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956,thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e before passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny 44 OS.No.9893/2006 (Minor) & Anr. vs. Sh. Raj Singh & Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch.
Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated.
Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a 45 OS.No.9893/2006 person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property.
In the case reported in (1994) 4 SCC 294 - Kenchegowda (since deceased) by Lrs., Vs. Siddegowda @ Motegowda wherein it is held as follows:
B. Hindu Law - Partition - suit for partial partition, when all the joint family properties not made the subject matter of the suit nor the co-sharers impleaded, not maintainable.
In the case reported in 1997 SCC OnLine Kar.554 - Tukaram Vs. Sambhaji and others wherein it is held as follows:
A. HINDU LAW - Partition - Maintainability of suit 46 OS.No.9893/2006 for partition of alienated item only, even though the joint family owned number of properties - Trial court held suit not maintainable as the inclusion of all joint family property was must. Lower Appellate Court took the view that suit for partial partition is maintenable- In Second Appeal the High Court holding that the suit for partial partition is not maintenable restored the decree of the trial court.
B) CPC Sec.100- Whether a suit for partial partition is maintainable or not is a substantial question of law.
In the judgment of Hon'ble High Court of Karnataka in RFA No.913/2010 between M.Laxmangoud and others Vs.M.Narasangoud and others wherein it is held as follows:
In the above referred judgment it is held that for partition should include all the properties belonging to the joint family. If for any reason any property is not included, the plaint should disclose why it is not included. Otherwise a suit for partial partition of the joint family properties is not sustainable.
In Jayaram Mudaliar v. Ayyaswami reported in 1972 (2) SCC 200, the Supreme Court held that The purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. The Supreme Court went on to further explain the scope of lis pendens as, 'It is evident that the doctrine, as stated in section 52, applies not merely to actual transfers of rights which are subject-matter of litigation but to other dealings 47 OS.No.9893/2006 with it by any party to the suit or proceeding, so as to affect the right of any other party thereto. Hence it could be urged that where it is not a party to the litigation but an outside agency such as the tax collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.' In Rajender Singh and Ors. v. Santa Singh and Ors. Reported in AIR 1973 SC 2537, it was observed by the Supreme Court that The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during pending litigation, are held to be bound by an application of the doctrine, by the decree passed in the suit even though they 48 OS.No.9893/2006 may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.
In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors., reported in AIR 1948 PC 147 it was held that broad principle underlying Section 52 of the Transfer of Property Act,1882 is to maintain status quo, unaffected by act of any party to the pending litigation.
23. Applying the above provisions and case laws to the facts and circumstances of the present case and on perusal of the entire materials on record and the evidence of both the plaintiffs and defendant no.1, it shows that there were several properties owned by Chinnabbareddy in Bangalore, Chittoor and other places. There was an oral partition in the year 1983 and as per the oral partition, entire properties were divided in to four parts. Same has been acted upon by the joint family members. Suit schedule property in Bangalore fell to the share of the 1st defendant. 1St defendant has got constructed the house without any aid from the plaintiffs or from other family members. Thereafter, he has executed the gift deed in favour of defendant No.10. Plaintiffs have not shown whether they have spent any amount for construction of the building 49 OS.No.9893/2006 in the suit schedule property. Plaintiffs have not produced any single record to show that they were in possession and enjoyment of the suit schedule property. On reading of entire documents and evidence, it is evident that there were many other properties in Chittoor and other places, they are not included in the present suit. It is settled principle of law that in a suit for partition, all the necessary and proper parties have to be made as parties and all the properties that have to be included in the partition suit. If all properties are not included in the suit schedule, there must be a proper reasons for exclusion of those properties. Otherwise, the suit will fail.
In the present case, defendant No.1& 10 have proved that there was an oral partition in the year 1983, same has been acted upon. Therefore, the claim of the plaintiffs claiming 1/3rd share each in the share of their father does not arise for consideration.
24. It is also a settled principle of law that a grandson cannot claim partition in grandfather's self acquired property during the life time of his father. In the present suit, the plaintiff has filed the suit during the life time of his father. Therefore, no cause of action arose to seek for partition. Even if it is considered that there was a cause of action, when the property is purchased by the grandfather in the year 1964, after the demise of grandfather, the property will get inherited by the plaintiffs father and others as per Sec.8 of Hindu 50 OS.No.9893/2006 Succession Act. The same would operate as separate property of the father and he can dispose the same as per his wish and the grandson do not have any right to seek for partition in such property unless the property was a joint family/ coparcenary/ancestral property. Even on perusal of Sec.8 and clause 1 of Hindu Succession Act, it is evident that after the demise of a male Hindu, a son, daughter, widow, mother, widow, son of a predeceased son, daughter of a predeceased son and others would inherit the property. The same excludes the grandson. In the present case, as per the pleading of plaintiff, his grandfather purchased the suit schedule property in the year 1964. Thereafter, his father, grandmother, and brothers of his father released the property in favour of the 1 st defendant. Therefore, the plaintiff has lost the right to claim share in the property. Even when the grandfather died intestate in 1975, succession under section open for plaintiff's father, uncle and grand mother. The plaintiffs were not even born. There is no pleading or material on record to show that the suit schedule property was a joint family property or ancestral property which have been purchased by utilising joint family funds. The plaintiffs in their pleading itself has contended that the oral partition dtd.21.5.1983 is not binding upon them. This goes to show that there was a oral partition on 21.5.1983, though it is not registered. Moreover, on perusal of entire deposition of plaintiffs and defendants, it 51 OS.No.9893/2006 shows that there were several other properties, which are not included in the present suit. The plaintiffs grievance appears to only against the 1st defendant as they had made the 1st defendant only as the defendant in the original plaint. Thereafter, the other defendants have been impleaded. Except the defendant No.1 & 10 none other have properly contested the matter. The material on record goes to show that, though the suit has been filed in the year 2006, the plaintiffs, even after coming to know that the suit is bad for non-inclusion of all the joint family properties, the plaintiffs have not made an effort to include the same. It also shows that property existing in the name of 1 st defendant alone is made as a suit schedule property due to some illwill and other criminal case between the plaintiffs and 1st defendant. It also appears that on the basis of the oral partition dtd.21.5.1983, the children of Chinnabbareddy already acted upon the same. The property in Bangalore fell to the share of 1 st defendant. It is also known fact that the property rates in Bangalore was not fetching more value in the year 1983. However, it has been increased when compared to other places. Just because of the value of the property in Bangalore has increased, the plaintiffs have opted to seek for share in the said property without including remaining property of the joint family.
25. On perusal of the registered sale deed dated 26.6.1964, it shows that one M.Basappa Reddy had sold the 52 OS.No.9893/2006 property to K.P.Kannayya by way of registered sale deed on 1.3.1962. Thereafter, K.P.Kanniah sold the property to Grandfather of Plainitffs i.e. Chinnabbareddy for a valuable consideration of Rs.2,000/-. The same is not disputed.
26. On perusal of the recital of the release deed dtd.19.8.1999 Ex.P6, it shows that it is executed by Smt. Bhagyamma W/o. Late Chinnappa Reddy (Defendant No.8), K.C. Narasimha Reddy S/o. Late Chinnappa Reddy and K.C. Subramanyam S/o. Late Chinnappa Reddy releasing the suit schedule property infavour of Govinda Reddy S/o. Late Chinnappa Reddy. The recitals shows that Suit schedule property was acquired by Late Chinnappa Reddy(grandfather of plaintiffs) by registered sale deed dated 26.6.1964. Chinnappa Reddy died intestate on 11.10.1975, leaving behind his wife and sons as the only legal heirs. The release deed shows that khata in respect of the property is already existing in the name of the 1st Defendant vide khata certificate dated 25.11.1997. 1st defendant has already got constructed residential house at his cost and being used by him for his dwelling purpose. The release deed shows that the it is being executed to avoid any dispute or difference in future. The release deed further shows that releasors have aquited, released, discharged, granted, conveyed, transfered and assured unto and to the use of the releasee(1st defendant) the schedule property and every part thereof absolutely and 53 OS.No.9893/2006 forever. However, the plaintiffs have have relied on the recital in the Release Deed which states that since the date of inheritance, the parties herein are jointly in peaceful possession and enjoyment of the schedule property as the co- owner thereof exercising all acts of lawful ownership owner it with impeccable right, title and interest therein without any kind of let or hindrance from anybody whomsoever from anybody whomsoever and in any manner whatsoever. It is settled principle of law that the recitals cannot be read in isolation. It has to be read as a whole. On careful perusal of the entire recital of the Release deed, it shows that the Suit schedule property was purchased by grandfather of the plaintiffs. After the demise of the grandfather, grandmother, and sons have got the right by way of inheritance. In order to avoid future disputes, the father of the plaintiff, grandmother and uncle of the plaintiff have absolutely released the property in favour of the Defendant no.1.
27. On perusal of Ex.P1 sale deed dtd.26.6.1964 and Ex.P6 Release Deed dtd.19.8.1999, both the documents are silent as to whether the suit schedule property was purchased by using the existing joint family property. There is also no pleadings or materials on record to show with the aid and assistance of joint family nucleus the suit schedule property was purchased.
54OS.No.9893/2006 On Perusal of Ex D1(a), the typed copy of of the sale deed dtd.30.7.1984, it shows that one Geethamma w/o N. Govindareddy has purchased the property bearing Sy.No.167/8, Sy.No.168/12, & Sy.No.167/9 of Athmakur village, Chittoor Taluk, from Bhagyamma, her son K.C.Narasimhareddy & his minor son Umashankarareddy, K.C. Subramanyareddy & his minor sons S.Ravikumar and S.Ramesh. Therefore it is evident that plaintiffs and their parents have also the sold the properties situated in Chittoor which was allotted to them as per oral partition.
28.Evidence has to be weighed and not counted. When both the parties have led the evidence the question of onus fades into oblivion and the entire evidence has been appreciated as a whole. While appreciating the evidence, it is the duty of the Court to sift the grain from the chaff. The court has to appreciate the evidence in its total gist and not to pick one some scattered sentences, else one may miss the wood for the trees. The final picture has to emerge on the basis of the entire chain of evidence upon considering the pleadings of the parties and the evidence of PW1 and DW1 on this touchstone the scheme of facts which emerges that the plaintiffs have failed to prove that suit schedule property is a joint family property. No right accrues to the plaintiffs when their father 55 OS.No.9893/2006 himself released the right in favour of 1 st defendant by way of registered release deed. Suit is also bad for non-inclusion of all the properties. Therefore, I answer Issue No.1, 3 to 6,10 in the negative and issue No.2 in the affirmative.
29. Issue No.7: Though the defendants No.1 & 10 have taken the contention that the suit of the plaintiffs is not properly valued and the court fee paid is insufficient, they have not produced any evidence in this regard. The plaintiffs have valued the suit and paid court fee of Rs.400/- for the reliefs sought in the plaint. Hence, the court fee paid is sufficient. Therefore, I answer the above issue in the negative.
30. Issue No.8:. The defendant No.1 & 10 have taken the contention that the alleged partition deed that has been entered on 21.5.1983. Same was not challenged within the time of limitation. Therefore, the suit is barred by limitation. On the other hand, the counsel for the plaintiffs argued that as per Art.109 of Limitation Act, time limit to file the suit begins from the date when the alienee takes possession of the property, then the suit has to file within 12 years. In the present case, alienee taken possession of the property in the year 1999 as per release deed dtd.19.8.1999 and suit has been filed in the year 2006. Therefore, it is well within time. On perusal of Art.109 of Limitation act it reveals that the 56 OS.No.9893/2006 period of limitation for a suit by a Hindu governed Mitakshara law to set aside his father's alienation of ancestral property is twelve years and the limitation commences when the alienee takes possession of the property. So the suit filed by the plaintiffs is well within time. Hence, I answer the above issue in the negative.
31. Issue No.9, 11 & 12: Inview of my findings on issue No.1 to 6 & 10, plaintiffs are not entitled for the relief as prayed. Hence, I answer the above issues in the negative.
32. Issue No.13: In the result, I pass the following:
O RDE R The suit of the plaintiffs is hereby dismissed. Inview of the relationship between the parties, they are directed to bear their own costs. [Dictated to the Judgment Writer, computerised, and print out taken by him, corrected and then pronounced by me, this day the 6 th January 2021.
(SADANANDA NAGAPPA NAIK) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU AN N E XU RE
1. No.of witnesses examined on behalf of plaintiff/s :
PW1 : Ravikumar.S
57
OS.No.9893/2006
2. No.of documents marked on behalf of plaintiff/s :
Ex.P1 : CC. Of sale deed dtd.26.6.1964 Ex.P2 : Office copy of legal notice dtd.6.10.2006 Ex.P3 : RPAD receipt Ex.P4 : Acknowledgment Ex.P5 : CC of gift deed dtd.5.4.2012 Ex.P6 : CC of release deed dtd.19.8.1999 Ex.P7 : Plaint family Genealogy Ex.P8 : CC of order sheet in CC.151451/2003 Ex.P9 : CC of complaint Ex.P10 : CC of FIR Ex.P11 : CC of charge sheet Ex.P12 : CC of application for compounding Ex.P13 : CC of orders of compromise in CC.151451/03 Ex.P14 to 16: Photographs Ex.P17 : CC of vakalath of defendant No.5 in OS.No.9893/06 Ex.P18 : CC of memo filed by defendant No.5 in OS.No.9893/06
3. No. of witnesses examined on behalf of defendant/s :
DW1 : Govindareddy
4. No. of documents marked on behalf of defendant/s :
Ex.D1, 1(a): CC of sale deed dtd.30.7.1984 & typed copy Ex.D2 : CC of release deed dtd.19.8.1999 Ex.D3 : Certificate issued by BBMP Ex.D4 : Encumbrance certificate Ex.D5 : CC of gift deed dtd.5.4.2012 Ex.D6 to 8: Tax paid receipts Ex.D9 : CC of order sheet in CC.15145/03 XVIII Addl. City Civil Judge Bangalore City.
58 OS.No.9893/2006 Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
O R DE R Suit of the plaintiffs is hereby dismissed.
Inview of the relationship between the parties, they are directed to bear their own costs.
XVIII Addl.C.C. & S.J., Bangalore