Karnataka High Court
Banamma vs Doddaputtappa on 10 January, 2014
Author: B.S.Patil
Bench: B.S.Patil
RFA 561/1999
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
R.F.A.No.561/1999
BETWEEN:
Smt. Banamma,
W/o Siddamariyappa,
Since dead by her LRs.
(a) Sri Siddamariyappa,
S/o late Ramalingappa,
Aged about 80 years.
(b) Smt. Doddathaye,
D/o late Banamma,
Aged about 55 years.
(c) Sri S.Thyagaraj,
S/o late Banamma,
Since dead by his LRs.
(1) Smt. Nagarathnamma,
W/o late Thyagaraj,
Aged about 50 years.
(2) Smt. Gayathri,
W/o Purushothama,
Aged about 30 years.
(3) Smt. Pushpa.T.,
W/o Mohan,
Aged about 28 years.
(4) Sri Rajabanappa,
S/o S.Thyagaraj,
Aged about 26 years.
RFA 561/1999
2
(5) Sri Ramesh,
S/o late Thyagaraj,
Aged about 23 years.
(1) to (5) are residents of No.1/3,
3rd Cross, Gopalpura,
Behind Minerva Mill,
Magadi Road,
Bangalore - 23.
(Amended vide Court Order
dated 18.09.2013)
(d) Smt. Chandrakala,
D/o late Banamma,
Aged about 36 years.
(e) Sri Manjunath,
S/o late Banamma,
Aged about 33 years.
(f) Smt. S.Manjula,
D/o late Banamma,
Aged about 28 years.
(a) to (f) are residing at No.1/3,
3rd Cross, Magadi Road,
Bangalore - 560 023.
(Amended vide Court Order
dated 31.07.2013) ..APPELLANTS
(By Sri M.R.Rajagopal, Adv. for A-1(a), (d), (e) (f) & (c)-(1) to (5))
AND:
1. Sri Doddaputtappa,
S/o late Banappa,
Since dead by his LRs.
RFA 561/1999
3
a) Smt. Thimmakka,
W/o late Doddaputtappa,
Aged Major.
b) Smt. Hemavathi,
W/o Rangaswamy,
Aged Major.
(a) & (b) are residing at
Poorna Venkatarao Road,
Ranasinghpet,
Bangalore - 560 053.
(Amended vide Court Order
dated 27.04.2004)
2. Smt. Mallamma,
W/o Mallaiah,
Since dead by her LR.
Smt. Manjamma,
W/o Sri Nagaraj,
Aged about 50 years,
R/o No.22, 3rd Floor,
M.R.Lane, Cottonpet,
Bangalore - 560 053.
(Amended vide Court Order
dated 31.07.2013)
3. Smt. Pillamma,
W/o Thimmaiah,
Aged Major,
R/o Arlekatta,
Kora Post,
Tumkur Dist.
4. Smt. Kempamma,
Since dead by her LRs.
(a) Sri Manjunatha.P.,
Hindu, Major, No.177,
Nazarabad (Kuripalya),
RFA 561/1999
4
Melkote Road (Erasaguru),
Tumkur.
(b) Smt. Bhagyalakshmi,
W/o Lakkegowda,
Hindu, Major,
Residing at No.24/B,
12th Cross Road,
Magadi Road,
Bangalore - 560 023.
(c) Smt. Shashikala,
W/o Shankar,
Hindu, Major,
No.24/B, 12th Cross,
Magadi Road,
Bangalore - 560 023.
(d) Smt. Gangavathi,
W/o Ramanna,
Hindu, Major,
Residing at Billinakote village,
Dabaspete Hobli,
Nelamangala Taluk,
Bangalore Rural District. ..RESPONDENTS
(By Sri O.K.Harish & H.L.Sreenivas, Advs. for R-4(a);
Sri Nagaraja.M., Adv. for R-2(a);
Sri M.C.Prabuji, Adv. for R-4(a) & (b);
Sri Rakshit.K.N., & Sri Ravichandra.S.N., Advs.
for R-1(a) & (b))
This Regular First Appeal is filed under Section 96 of CPC
against the judgment and decree dated 03.04.1999 passed in
O.S.No.1497/1983 by the I Addl. City Civil Judge, Bangalore,
partly decreeing the suit for declaration, possession and for
mesne profits.
This appeal having been heard and reserved for judgment
on 16.12.2013, coming on for 'Pronouncement of Judgment',
this day, the Court delivered the following:
RFA 561/1999
5
JUDGMENT
1. This regular first appeal is filed by the 3rd plaintiff in O.S.No.1497/1983 aggrieved by the judgment and decree dated 03.04.1999 passed by the I Addl. City Civil Judge, Bangalore City.
2. The 1st respondent was the 1st defendant. Respondents 2 & 3 were plaintiffs 1 & 2 before the Trial Court. The 4th respondent was the 2nd defendant and upon her death, her legal representatives are brought on record. The 3rd defendant - Puttalakshmamma died during the pendency of the suit leaving behind plaintiffs 1 & 3 and defendants 1 & 2 as her legal representatives.
3. Plaintiffs 1 to 3 are sisters being the daughters of Banappa and Puttalakshmamma. The 1st defendant is the brother of the plaintiffs. The 2nd defendant was another sister of the plaintiffs. The 3rd defendant was the widow of Banappa being the mother of the plaintiffs and defendants 1 & 2. In other words, the three sisters instituted the suit against their brother, another sister and widowed mother seeking a declaration that the plaintiffs and defendants 2 & 3 were entitled for 1/5th share in the suit schedule properties and for RFA 561/1999 6 partition of the said properties by metes and bounds. They also sought for inquiry into mesne profits under Order XX Rule 12 of CPC.
4. The suit schedule properties consisted of four items. Item No.1 being a house property bearing Assessment No.4, Old No.9/10 comprised of five shops. Item No.2 of the suit schedule was a residential house comprised in Property Nos.1, 2 & 5 at Chord Road Industrial Estate, Magadi Road, Bangalore - 23. Item No.3 is the property bearing Assessment No.2 in Govindarajanagar, Bangalore. Item No.4 is the property comprised in Sy. No.440/1 & 2 situated in 25th Division of the Corporation of City of Bangalore. Except suit schedule Item No.1, the boundaries and measurements of the other properties have not been given.
5. The plaint averments disclose that Banappa and the 1st defendant - Doddaputtappa formed a joint hindu family. The 1st defendant separated himself from the family by executing a release deed dated 16.09.1950 releasing all his rights in the family properties in favour of his father by taking one of the properties. Thus, Banappa (father of the plaintiffs and defendants 1 & 2) continued as absolute owner of the suit RFA 561/1999 7 schedule properties, wherein plaintiffs and defendants were entitled for equal share upon the death of Banappa. They also asserted that upon the death of their father - Banappa - plaintiffs and defendants were in joint possession and enjoyment of the suit properties. Plaintiffs further stated that the suit properties comprised of dwelling house and shop fronts. On the death of Banappa, at the request of the 1st defendant, plaintiffs allowed the 1st defendant to collect the rents and make use of the properties for his maintenance. Taking advantage of the same, the 1st defendant started denying the rights of the plaintiffs over the suit properties which compelled them to approach the Court seeking their 1/6th share in the suit schedule properties. As defendants 2 & 3 were hand in glove with the 1st defendant, they were arrayed as party defendants. Item No.4 of the suit schedule was sold by the 1st defendant in favour of one M.Narayana under a registered sale deed dated 21.01.1980, hence, it was only plaintiffs and defendants 2 & 3 who were entitled to 1/5th share in the suit schedule properties.
6. The 1st defendant filed written statement admitting the relationship between the parties and also the fact that his RFA 561/1999 8 father Banappa died four years ago on 28.07.1980. However, the plaint averments stating that the 1st defendant ceased to be the member of the joint family and that Banappa was in possession of the family properties till he died were denied as incorrect. He asserted that the properties were in joint possession of his father Banappa and himself. He urged that the alleged release deed was executed when he was a minor and hence, the release deed was void ab initio and not binding on the 1st defendant. He also denied the plaintiffs' assertion that they had come in joint possession of the properties along with the 1st defendant. The release deed was got executed by the father of the 1st defendant as a nominal deed without any consideration and the 1st defendant continued to live with his father until he died. He urged that the marriage of the 1st defendant was in fact celebrated by his father. He denied the other averments made by the plaintiffs and asserted that the plaintiffs, if at all, were entitled for 1/12th share of the suit schedule properties along with the liabilities attached to the same. The 1st defendant further contended that the alleged sale in favour of one M.Narayana was effected prior to the death of his father as per the direction of the father to meet the expenses of the family and for the benefit of the estate. RFA 561/1999 9
7. As regards Item No.2 of the plaint schedule, the 1st defendant urged that the suit property was sold for legal necessity and for the benefit of the family by his father - late Banappa in favour of the 1st defendant as per the sale deed dated 10.09.1959, hence, the plaintiffs were not entitled to claim any share in Item No.2 of the plaint schedule. He urged that the plaintiffs and the 2nd defendant have been each given a portion of site measuring 15' x 90' comprised in premises bearing No.1, 3rd Cross Road, Behind Minerva Mills, Magadi Road, which was the joint family property of his father - Banappa by executing a Will. It was agreed by the plaintiffs and the defendants with the deceased testator that the said bequest was made so that they should not claim any share in the other joint family properties of the testator and his son - 1st defendant. Therefore, the plaintiffs and defendants 2 & 3 were not entitled to make any further claim in respect of the other properties which were in exclusive possession and enjoyment of the 1st defendant. In case, the plaintiffs want a share in the family properties, the property bearing No.1, 3rd Cross Road, Behind Minerva Mills, Magadi Road, have to be also taken into RFA 561/1999 10 consideration at the time of effecting division among the plaintiffs and the defendants.
8. The 1st defendant further contended that Item Nos.3 & 4 of the suit schedule properties had been occupied by slum dwellers who had trespassed into the property, apart from two other encroachers against whom the defendant had filed O.S.No.3925/1980.
9. Based on the pleadings, the Trial Court framed the following issues:
(i) Whether the plaintiffs prove that Banappa was the absolute owner of the suit properties?
(ii) Whether the plaintiffs prove that after the death of
Banappa, they and defendant are in joint
possession of the suit properties?
(iii) Whether the plaintiffs prove that after the death of Banappa, 1st defendant was allowed to collect rents from the tenants?
(iv) Whether the plaintiffs prove that the 1st defendant released himself from the joint family under a release deed dated 16.09.1950?RFA 561/1999 11
(v) Whether the plaintiffs prove that the 1st defendant has forfeited to claim his share in the properties?
(vi) Whether the 1st defendant proves that he and Banappa were in joint possession of the suit properties?
(vii) Whether the 1st defendant proves that after the death of Banappa, he has succeeded to the properties as sole surviving coparcener of the joint family and he is in exclusive possession?
(viii) Whether the 1st defendant proves that Item No.2 of the suit schedule was sold by Banappa in his favour for legal necessity under a sale deed dated
10.09.1959 and the plaintiffs are not entitled to claim any share in Item No.2?
(ix) Whether the 1st defendant proves that as per the Will executed by Banappa property bearing No.1, 3rd Cross, Behind Minerva Mill, Magadi Road, was given to the plaintiffs and the 2nd defendant and Hemavathi with the understanding that they should not claim any other joint family properties?
(x) Whether the 1st defendant proves that plaintiffs and defendant Nos.2 & 3 are not entitled to claim any share in Item Nos.1, 3 & 4?
(xi) Whether the 1st defendant proves that property No.1, 3rd Cross, Behind Minerva Mills, Magadi RFA 561/1999 12 Road, should also be included if the plaintiffs are entitled to any share?
(xii) Whether the suit is bad for non-joinder of necessary parties?
(xiii) Whether the suit is not properly valued and the court fee is paid is not correct?
(xiv) Whether the plaintiffs are entitled to 1/5th share each in the suit properties?
(xv) Whether the plaintiffs are entitled to partition and separate possession of their share?
(xvi) Whether the plaintiffs are entitled to mesne profits? (xvii) To what reliefs parties are entitled to? Addl. Issue:-
(i) Whether the 1st defendant proves that the release deed is void ab initio and not binding on him?
10. The plaintiffs examined PWs-1 to 4 and got marked Ex.P-
1. The 1st defendant examined himself as DW-1 apart from examining two witnesses as DWs-2 & 3. He produced and marked Exs.D-1 to D-14.
RFA 561/199913
11. This Court vide order dated 27.09.2004 passed on IA No.1/2003 filed under Order XLI Rule 27 CPC allowed additional evidence to be produced and directed the Registry to send back the lower court records to the Trial Court with a direction to record additional evidence with regard to Item Nos.2 & 4 of the suit schedule properties. This Court noticed that the Trial Court did not decree the suit for partition in respect of Item Nos.2 & 4 in view of the finding that Item No.2 was sold on 10.09.1959 as per Ex.D-2 in favour of the 1st defendant by Banappa and hence, the plaintiffs had no right in the suit property. However, the assertions of the plaintiffs that the suit property had been sold back/re-conveyed to the father of the 1st defendant was not taken into consideration as the plaintiffs were not able to produce any document at that stage. So far as Item No.4 of the suit property was concerned, the plaintiffs were denied of their share as the same was sold by the 1st defendant during the life time of Banappa on 21.01.1980. Therefore, the Trial Court was directed to record evidence by giving opportunity to both the parties and by permitting them to mark the documents as additional evidence.
RFA 561/199914
12. Pursuant to the direction issued by this Court to record additional evidence, the evidence of DW-4 - one P.Hemavathi, D/o late Doddaputtappa - 1st defendant was recorded. In fact, the examination-in-chief by way of affidavit dated 12.01.2005 of this witness P.Hemavathi was filed into the Court. Exs.P-2 & P-3 were marked. She was subjected to cross-examination on 12.01.2005. No other evidence was adduced.
13. The Trial Court has held that the 1st defendant executed the release deed as per Ex.P-1 on 16.09.1950 in favour of his father and had released himself from the family. The 1st defendant got one site bearing No.4, Near Kadapaswamy Mutt under the said release deed which he sold to one Govindswamy Naidu on 28.01.1952, which fact disclosed that the 1st defendant had got released from the family under Ex.P-1 and the said release deed had been acted upon. The Trial Court further accepted the contention of the 1st defendant that Item No.2 of the suit schedule property was sold in his favour by his father as per Ex.D-2 - sale deed and that the plaintiffs though took up a contention that the said property was re-conveyed to their father, no document had been produced to establish the same. The Trial Court found that what was conveyed to the 1st RFA 561/1999 15 defendant under Ex.D-2 was 2½ guntas and the remaining extent was owned by the father of the plaintiffs. The Trial Court, however, did not spell out what was the remaining extent and what were its boundaries. The Trial Court further found that merely because a portion of the property was bequeathed by Banappa in favour of his daughters, it could not be said that the plaintiffs were not entitled for any right in respect of the other properties upon the death of their father. It also came to the conclusion that the property bequeathed by the testator cannot be included in the family hotch pot for partition.
14. As regards Item No.4 which was sold by the 1st defendant on 21.01.1980 in favour of one M.Narayana, the Trial Court found that the plaintiffs failed to produce any document to show that the sale was made by the 1st defendant alone. It found that as the sale was made in the lifetime of the father of the 1st defendant, it could not be stated that the said sale was done exclusively by the 1st defendant. Hence, Issue No.5 was answered in the negative.
15. As regards Issue No.12 which pertained to suit being bad for non-joinder of necessary parties because Item Nos.3 & 4 of the suit properties had been occupied by others who were not RFA 561/1999 16 made parties, the Trial Court found that the encroachers or occupiers could not be considered as necessary parties to the suit for partition. The Trial Court proceeded to hold that on the date of death of the father of the plaintiffs, Item Nos.1 & 3 of the suit properties were the only properties left by the deceased father of the plaintiffs and Item Nos.2 & 4 had been disposed of. Hence, it was held that the plaintiffs and defendants were entitled to equal share in Item Nos.1 & 3 of the suit schedule properties to an extent of 1/6th share. As the 1st defendant was held to be in possession of the suit properties collecting rents, plaintiffs were held entitled for an inquiry into the mesne profits in respect of the said two properties. Thus, the decree for partition of 1/6th share of the plaintiffs was granted only in respect of item Nos.1 & 3. As the 1st plaintiff had filed a memo on 11.06.1985 stating that she was not pressing her claim in the suit, plaintiffs 2 & 3 only were entitled for their 1/6th share and the suit was decreed only in favour of plaintiffs 2 & 3 granting 1/6th share in Item Nos.1 & 3.
16. Aggrieved by the judgment and decree passed by the Trial Court denying partition in respect of Item Nos.2 & 4 of the suit RFA 561/1999 17 properties, the 3rd plaintiff alone has preferred this regular first appeal. The 2nd plaintiff has not filed any other appeal.
17. Mr. M.R.Rajgopal, learned Counsel for the appellant contends that as per Ex.P-3 - sale deed dated 21.01.1980, it is clear that Item No.4 property was sold only by the 1st defendant in favour of M.Narayana, but not by both the 1st defendant and his father Banappa. He, therefore, contends that the said sale deed was not binding on the plaintiffs and the plaintiffs were entitled for a share in the said property. His further contention is, that as per Ex.P-2 - sale deed dated 10.10.1960, deceased 1st defendant sold Item No.2 property in favour of Banappa and therefore, upon the death of the father, plaintiffs and defendants 2 and 3 succeeded to the said property to the exclusion of the 1st defendant, as the 1st defendant was not the coparcener and had separated from the family.
18. Counsel appearing for respondents 1(a) & 1(b) contends that the release deed did not disclose the properties released by the 1st defendant in favour of his father. Therefore, the said document being vague cannot be relied upon. He urges that the executant was a minor at the time of execution of the release deed. It is also contended by him that in the absence of proper RFA 561/1999 18 description of the properties, a release deed could not have been registered. It is his further contention that the plaint does not give proper description of the plaint schedule property, particularly Item Nos.2 & 4 and therefore, the plaint itself was liable to be rejected as per Order VII Rule 3 CPC. In this connection, he has placed reliance on the judgment in the case of AMBANNA Vs. GHANTEAPPA - AIR 1999 KAR 421. He has further contended that the decree passed in respect of such properties not described as per Order VII Rule 3 CPC, is not capable of execution. He has placed reliance on the judgment in the case of CHUTAHRU BHAGAT & OTHERS Vs. HIALIL SAH & OTHERS - AIR (37) 1950 PATNA 306, HEIRS OF CHARAN PAI REANG SMT.SAMABATI RIANG & OTHERS Vs. SRI DINABANDHU DAS & OTHERS - AIR 1964 TRIPURA 36. It is also further contended by him that having taken their share in the joint family under the bequest made by Banappa - the father, the daughters have with a mala fide intention instituted the suit without furnishing proper boundaries and therefore, the suit itself was not maintainable and the decree passed is not sustainable.
RFA 561/199919
19. Having heard the learned Counsel for the parties and on careful perusal of the entire materials on record, it is to be stated at the outset that the legal representatives of the 1st defendant have not filed any cross appeal nor have they filed cross objections. The appeal is filed only by the 3rd plaintiff aggrieved by the dismissal of the suit in respect of Item Nos.2 &
4. Therefore, the only point that arises for consideration in this appeal is, "Whether the trial Court was right and justified in not decreeing the suit in respect of Item Nos.2 and 4 of the suit schedule properties and also in awarding 1/6th share to the plaintiffs and defendants in respect of Item No.1 and 3?"
20. It is not in dispute that even as per the plaint averments, the portion of Item No.4 of the suit schedule property was sold in favour of M.Narayana by the 1st defendant under a registered sale deed dated 21.01.1980. In the plaint schedule, Item No.4 is described as under:
"Property comprised in S.No.440/1 & 2 situated in the 25th Division of the Corporation of City of Bangalore along the road leading to Nagarabhavi and form portion Gramatana and Thimmanahalli in Magadi Road, comprised houses and vacant sites."RFA 561/1999 20
21. The case of the 1st defendant is, that the sale in favour of M.Narayana was before the death of his father and on the direction of his father to meet the expenses of the family. The plaintiffs have not furnished boundaries of the property comprised in Item No.4. As per the registered sale deed produced and marked as Ex.P-3, a portion of the property in Item No.4 has been sold in favour of M.Narayana on 21.01.1980. The said portion is also included in the plaint schedule. M.Narayana is not made party to the suit. The sale in favour of M.Narayana had been made during the life time of Banappa. Banappa did not raise any objection for the sale.
22. Though the suit is filed on 04.06.1983, after a lapse of more than three years from the date of execution of the registered sale deed in favour of M.Narayana, plaintiffs have not chosen to challenge the said sale or seek any declaration in that regard. They have not furnished either the boundaries or the extent and measurement of the remaining portion of Item No.4 property. The defendant, in his written statement, has contended that the remaining portion has been encroached by trespassers and slum dwellers. In the absence of any challenge RFA 561/1999 21 to the sale deed dated 21.01.1980 and in the absence of the purchaser - M.Narayana being arrayed as party to the suit and as the suit was instituted after a lapse of more than three years from the date of sale in favour of M.Narayana without seeking any relief including possession of the said property, I am of the considered view that the plaintiffs were not entitled for any decree in respect of Item No.4, particularly the portion that had been sold to the said M.Narayana.
23. As regards the remaining portion, there is nothing to show either in the pleading or in the evidence as to which portion of the property remained with the family after the sale and whether at all the family of the plaintiffs was in possession of the same. No documents are produced to evidence the title and possession of the remaining portion in Item No.4 by the plaintiffs. Hence, the plaintiffs are not entitled for any decree even as regards the decree for partition in respect of the remaining unspecified portion of Item No.4.
24. In so far as Item No.2 of the schedule property is concerned, it is clear from the additional evidence recorded and Ex.P-2 - registered sale deed dated 10.10.1960 marked in evidence after the additional evidence was allowed by this RFA 561/1999 22 Court, that the 1st defendant sold this property in favour of his father as per the registered sale deed dated 10.10.1960. The Trial Court has rightly found that the 1st defendant had executed the release deed dated 16.09.1950 in favour of his father releasing his rights in respect of all the other family properties by taking a site. The said release deed has been proved.
25. Although the counsel for respondents 1(a) and 1(b) has contended that this release deed was a nominal one and was executed when the 1st defendant was a minor, the Trial Court has rightly repelled this contention. There is no evidence produced by the 1st defendant to establish this defence. In fact, the very fact that he purchased Item No.2 property from his father under a registered sale deed dated 10.09.1959 as per Ex.D-2 disclosed that he was not the member of the family and had gone out of the family by releasing his rights in favour of the other family properties. It is also evident that subsequently he has re-conveyed this property in favour of his father by way of registered sale deed dated 10.10.1960 as per Ex.P-2. Therefore, the suit property became the absolute property of the father of the plaintiff and the 1st defendant. On the death of the RFA 561/1999 23 father, this property (Item No.2) along with other properties (Item Nos.1 & 3) held by the father will be succeeded to by the surviving heirs of Banappa i.e., to say his four daughters, son - 1st defendant and his widow - 3rd defendant. They will be entitled to get their 1/6th share in the said items of properties. But, as the 1st plaintiff has not pressed her suit and her suit is dismissed, plaintiffs 2 & 3 will only be entitled for partition of their 1/6th share in Item Nos.1, 2 & 3 of the suit schedule properties. As the mother - 3rd defendant has since died, her legal representatives viz., plaintiffs 1 to 3 and defendants 1 & 2 will succeed equally to her 1/6th share. The judgment and decree passed by the Trial Court deserves to be modified to the above extent.
26. In the result and for the foregoing, this appeal is allowed in part. The judgment and decree of the Trial Court is modified only to the extent that the appellant - 3rd plaintiff is entitled for 1/6th share even in Item No.2 of the suit schedule property and that plaintiffs 1 to 3 and defendants 1 and 2 are entitled to the 1/6th share left behind by deceased mother - 3rd defendant in respect of Item Nos.1, 2 & 3. In all other respects, the judgment RFA 561/1999 24 and decree passed by the Trial Court is left undisturbed. Both the parties are directed to bear their respective costs.
Sd/-
JUDGE KK