Karnataka High Court
Smt Venkatamma vs Sri Gowda Ramaiah @ Gaadi Ramanna on 5 April, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.2383/2010 (PAR)
BETWEEN:
1. SMT. VENKATAMMA
W/O LATE PILLAPPA
AGED ABOUT 57 YEARS
2. SRI SAMPANNA
S/O LATE PILLAPPA
AGED ABOUT 37 YEARS
3. SRI MUNIRATHNAMMA
D/O LATE PILLAPPA
AGED ABOUT 32 YEARS
4. SRI MUNIRAJA
S/O LATE PILLAPPA
AGED ABOUT 30 YEARS
ALL ARE R/AT
KURUBARAHALLI VILLAGE,
KASABA HOBLI,
HOSAKOTE TALUK-560044. ... APPELLANTS
[BY SRI ABHINAV R., ADVOCATE]
AND:
1. SRI GOWDA RAMAIAH @ GAADI RAMANNA
S/O LATE MUNIYAPPA
2
AGED ABOUT 62 YEARS
SINCE DECEASED REPRESENTED BY HIS LRS
1(1). SMT.RADHAMMA
AGED ABOUT 50 YEARS
D/O LATE SRI GOWDA RAMAIAH
@ GAADI RAMANNA
1(2) SMT. MANJULAMMA
AGED ABOUT 48 YEARS
D/O LATE SRI GOWDA RAMAIAH
@ GAADI RAMANNA
1(3). SMT. SAMPAMMA
AGED ABOUT 46 YEARS
D/O LATE SRI GOWDA RAMAIAH
@ GAADI RAMANNA
1(4). SMT. GOWRAMMA
AGED ABOUT 44 YEARS
D/O LATE SRI GOWDA RAMAIAH
@ GAADI RAMANNA
1(5). SMT.RUKHMINI
AGED ABOUT 42 YEARS
D/O LATE SRI GOWDA RAMAIAH
@ GAADI RAMANNA
1(6). SMT. LAKKAMMA
AGED ABOUT 40 YEARS
D/O LATE SRI GOWDA RAMAIAH
@ GAADI RAMANNA
RESPONDENT NOS.1(1) TO 1(6) ARE
RESIDINGS OF KANNURAHALLI GRAMA
KASABA HOBLI, HOSAKOTE TALUK
BENGALURU RURAL DISTRICT-562 132.
3
1(7). SRI RAMANJI
S/O LATE SRI GOWDA RAMAIAH
@ GAADI RAMANNA
SINCE DECEASED REPRESENTED BY HIS LRS.
1(7)(1). SMT.SHASHIKALA
AGED ABOUT 35 YEARS
W/O LATE RAMANJI
1(7)(2). SRI KARTHIK
AGED ABOUT 18 YEARS
S/O LATE RAMANJI
RESPONDENT NOS.1(7)(1) AND 1(7)(2)
ARE RESIDING AT 5TH CROSS
VINAYAKA NAGARA, HOSAKOTE
BENGALURU-562 114.
1(7)(3). SMT. ANJU (CHINNU)
D/O LATE RAMANJI
C/O GOVINDAPPA CHIMANDAHALLI
HOSAKOTE TALUK
BENGALURU-562 114.
2. SRI NARAYANAPPA
S/O LATE MUNIYAPPA
AGED ABOUT 60 YEARS
RESPONDENTS 1 AND 2 ARE
RESIDING AT KURABARAPET
HOSAKOTE TOWN,
HOSAKOTE TALUK
BENGALURU RURAL DISTRICT.
3. SRI MUNIYAPPA M.,
S/O LATE MUNIYAPPA
AGED ABOUT 50 YEARS
RESIDING AT V.V.EXTENSION
4
HOSAKOTE TOWN,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT-562 132.
... RESPONDENTS
[BY SRI D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI A.RAMACHANDRA, ADVOCATE FOR
R1(1, 2, 4 TO 6, 7(3));
VIDE ORDER DATED 09.06.2021
NOTICE TO R1(3) & R1(1)(7)(1 & 2) ARE HELD SUFFICIENT]
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 13.04.2010
PASSED IN R.A.109/2008 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT,
BANGALORE, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 24.06.2008 PASSED IN
O.S.347/1998 ON THE FILE OF THE CIVIL JUDGE (JR. DN.) AND
JMFC, HOSKOTE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.03.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned Senior counsel for respondent No.1 (1), (2), (4) to (6), 1(7)(3) and respondent Nos.2 and 3.
2. The parties are referred to as per their original rankings before the Trial Court, in order to avoid confusion and for the convenience of the Court.
5
3. The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of declaration to declare that the plaintiffs are the joints owners of the suit schedule properties along with the defendants and the plaintiffs are entitled for equal half share in all the items of the suit schedule properties and entitled for a partition and such other relief, contend that the plaintiff No.1 is the widow and the plaintiff Nos.2 and 4 are the sons and the plaintiff No.3 is the daughter of late Pillappa. The said Pillappa is the only son of his father Munishamanna. It is contended that the defendants are brothers and sons of late Muniyappa. The said Munishamanna and Muniyappa are the sons of one Pillappa and Smt. Siddamma of Hoskote Town. It is their contention that said Pillappa and Smt. Siddamma are husband and wife, and they have predeceased their four sons namely, Muniyappa, Sampanna, Munishamanna and Ramanna. Immediately after the demise of Pillappa and Smt. Siddamma, their four sons have constituted Hindu Undivided joint family having larger extent of landed properties. Among the four brothers, namely Muniyappa, Sampanna, Munishamanna and Ramanna, in view of the family 6 settlement through a registered deed dated 23.07.1951, the second brother Sampanna @ Gare Sampanna came out of the joint family by getting sufficient share in the joint family properties. Subsequently, the other remaining three brothers namely, Muniyappa, Munishamanna and Ramanna have continued in the said joint family.
4. It is also the case of the plaintiffs that other brother Ramanna also came out of the existing joint family by getting his share in the remaining family properties through a registered settlement deed dated 26.06.1952 and so also a deed of rectification dated 18.02.1958. During the course of the above said incident, wherein Sampanna and Ramanna came out of the joint family, the other brother Munishamanna was not alive and he died leaving behind his only son Pillappa, who was none other than the husband of the plaintiff No.1 and the father of the other plaintiffs. It is contended that said Pillappa was a minor, the first brother Muniyappa has acted as a guardian to the minor Pillappa for the purpose of registration of the document dated 23.07.1951, 02.06.1962 and 18.02.1958.
7
5. It is the contention of the plaintiffs that in view of the above said family settlement, the status of the plaintiffs and the husband of plaintiff No.1, namely Pillappa and Muniyappa have been in joint possession and the suit schedule properties being the ancestral properties continued with them. He is managing the affairs of the suit schedule properties. The said Muniyappa also died. Immediately after the demise of the said Muniyappa, Pillappa husband of the plaintiff No.1 and father of the other plaintiffs also died, leaving behind the plaintiffs as his sole surviving legal representatives. Immediately after the death of said Pillappa, the defendants have started giving pin-pricks to the plaintiffs which made the plaintiffs to come out from the joint family residential house and they took shelter at Kurubarahalli Village and now, they are residing at Kurubarahalli Village. Even after that, the defendants used to share the crops grown in the suit schedule properties. But, from last six months, they have started acting adverse to the interest of plaintiffs and by suppressing the joint right, title, interest and possession of the plaintiffs over the suit schedule properties, they have got changed the revenue records in their names. On the guise of 8 the said revenue records, now the defendants are trying to deny the legitimate share of the plaintiffs in the suit schedule properties and they are openly declaring that the plaintiffs have no right or share in the suit schedule properties. It is contended that plaintiffs have convened a panchayath on 15.11.1998, wherein the defendants have totally denied to give share to the plaintiffs in the suit schedule properties and are claiming exclusive right over the suit schedule properties. Hence, without any other alternative, filed the suit for declaration and for partition.
6. In pursuance of the suit summons, the defendants appeared and filed the written statement. In the written statement, it is contended that the very genealogical tree produced by the plaintiffs is a concocted one and does not reflect the correct picture of genealogical tree of the defendants and their ancestors. But admitted that Muniyappa, Sampanna, Munishamanna and Ramanna were the sons of late Pillappa and Siddamma. It is contended that the first son Muniyappa was called as Devanahalli Muniyappa, the second son Sampanna as 9 Gare Sampanna, the third son Munishamanna as Munishamappa and fourth son Ramanna as Ramaiah. It is also admitted that there was partition among the sons of late Pillappa and Siddamma. The third son, who married one Muddamma died earlier to partition of joint family without any issue but, contend that Smt. Muddamma after the death of Munishamanna remarried to one Maranna of Kurubarahalli according to religious custom of caste Kootke. The said Mudamma had no issue from her first husband Pillappa and she stayed with her second husband at Kurubarahalli. In view of her marriage after the death of her husband, she lost all her legal right which she owned as a wife of Munishamanna.
7. It is further contended that said Muddamma settled at Kurubarahalli and she had four children from Maranna, including late Pillappa, who is none other than the husband of the plaintiff No.1 and father of plaintiff Nos.2, 3 and 4. It is contended that late Pillappa, the husband of the plaintiff No.1 is no way connected to the family or lien of the genealogical tree of defendants and all the plaintiffs were from different branch and 10 hence, they cannot constitute any joint family and the question of getting any share also does not arise. However, admitted that Muniyappa died 20 years back and contend that there was partition among the defendants during the lifetime of late Muniyappa itself. There were several transactions between Muniyappa and others and in all such transaction, Muniyappa acted as sole proprietor. It is contended that item No.2 was purchased by Muniyappa, the father of the defendants through registered sale deed from his brother late Ramaiah. The item No.1 bearing Sy.No.99/1 was the share allotted to Muniyappa in the partition between his brothers. The same is got divided between all the three defendants and mutation was effected in 1986-87 itself under No. IHC 30/86-87. The item No.2 which was purchased by Muniyappa was sold to defendant No.3 vide sale deed dated 15.05.1976. The said sale deed was executed by Rangamma, wife of late Muniyappa and defendant Nos.1 and 2 and now, the property stands in the name of the defendant No.3.
11
8. It is contended that item No.3, Sy.No.95/1 which was fallen to the share of late Muniyappa, the father of the defendants in the partition of his brothers was got divided among his sons, the defendant Nos.1 to 3 and mutation was effected in 1988-89 under No. IHC 56/88-89. The total extent of this property is only 5 acres 33 guntas not 6 acres 3 guntas as contended in the plaint. It is contended that schedule property item Nos.4 and 5 is a house property in the possession of Smt. Venkatamma, wife of late Chikkanna since from the date of the partition between the brothers of late Muniyappa, the father of defendants. The katha even to this day stands in the name of Gare Sampanna, the brother of late Muniyappa, who is said to have got released from joint family status at earlier dates as claimed by the plaintiffs. Hence, contend that suit is liable to be dismissed on the score of non-joinder of necessary parties i.e., either Gare Sampanna nor his legal heirs. The plaintiffs are not the blood relatives of defendants and they have filed the suit only to harass the defendants with an ulterior motive to lay a false claim over the valuable properties of the defendants. Hence, prayed the Court to dismiss the suit.
12
9. Based on the pleadings of the parties, the Trial Court has framed the following issues:
"1. Whether the plaintiffs prove the status of joint family with defendants?
2. Whether the plaintiffs prove the joint ownership over the suit schedule properties along with the defendants?
3. Whether the plaintiffs are entitled for ½ share in the suit schedule properties?
4. Whether the defendants prove that item No.1 bearing Sy.No.99/1 and item No.3 Sy.No.95/1 measuring 5 acres 33 guntas was allotted to Muniyappa and same is got divided between themselves?
5. Whether the defendants prove that item No.2 was purchased by Muniyappa was sold to 3rd defendant as per the sale deed dated 15.05.1976?
6. Whether the defendants prove that the suit is bad for non-joinder of necessary parties?
7. Whether the plaintiffs are entitled for the relief of declaration and partition?
8. To what order or decree?"13
10. The plaintiffs, in order to prove their case, examined the plaintiff No.1 as P.W.1 and plaintiff No.2 as P.W.2 and got marked the documents as Exs.P1 to P8. On the other hand, the defendants examined defendant No.3 as D.W.1 and got marked the documents as Ex.D1 to D10.
11. The Trial Court, having considered both oral and documentary evidence placed on record, answered issue Nos.1 to 3 as 'negative', in coming to the conclusion that plaintiffs failed to prove the status of joint family with defendants and also joint ownership over the suit schedule properties along with the defendants. Hence, the plaintiffs are not entitled for half share as claimed in the suit. The Trial Court accepted the contentions of the defendants and answered issue No.4, in coming to the conclusion that the defendants have proved that item Nos.1 and 3 of the suit schedule properties are allotted to Muniyappa and the same is got divided between themselves. The Trial Court also comes to the conclusion that item No.4 was purchased by Muniyappa and the same was sold to defendant No.3 as per the sale deed dated 15.05.1976 and answered issue No.6 that 14 defendants have proved that suit is bad for non-joinder of necessary parties and dismissed the suit.
12. Being aggrieved by the dismissal of the suit, an appeal is filed before the First Appellate Court in R.A.No.109/2008. The First Appellate Court also, on re- appreciation of both oral and documentary evidence placed on record and also the grounds urged in the appeal, formulated the points whether the Trial Court went wrong in holding that plaintiffs have failed to prove that themselves and defendants constitute a joint Hindu Undivided Family with the suit schedule properties and whether the judgment and decree of the Trial Court calls for interference and point No.1 was answered as 'negative' and point No.2 was also answered as 'negative, in coming to the conclusion that the judgment and decree of the Trial Court does not require any interference. Being aggrieved by the said concurrent finding of the Trial Court as well as the First Appellate Court, the present second appeal is filed before this Court.
15
13. The main contention of the learned counsel for the appellants in this second appeal is that no dispute with regard to the fact that said Pillappa and Siddamma were having four sons and also contend that one among the said sons Munishamappa had married Muddamma. But, it is the contention of the defendants that said Muddamma married one Maranna and the plaintiffs are the sons of said Maranna. It is contended that both the Courts have denied a share to the plaintiffs on the ground that Pillappa is not the son born to Munishamanna @ Munishamappa and Siddamma. The Trial Court, without looking into the documentary evidence, blindly relied upon self-serving version and the defence taken by the defendants to the effect that Pillappa, husband of the plaintiff No.1 and the father of the remaining plaintiffs was not born to Munishamanna @ Munishamappa, but was born to one Maranna to whom Muddamma once again married. This finding is based on conjectures and surmises and both the Courts have committed an error which has resulted in miscarriage of justice, in denying the legitimate share to the plaintiffs in the suit schedule properties. It is contended that both the Courts were not 16 justified in coming to the conclusion that Pillappa i.e., the husband of plaintiff No.1 and father of the remaining plaintiffs was born to Maranna and both the Courts failed to consider the document of Exs.P1 and P2, wherein it is very clear that Pillappa was the son of Munishamappa and no cogent reasons are forthcoming as to why the Court rejected these documents which came into existence in the year 1951-52 itself. It is also not in dispute that two sons Sampanna @ Gare Sampanna and Ramanna came out from the joint family in the year 1951-52 by executing a settlement deed and the fact that remaining two sons took their share and left the joint family is not in dispute and prior to the said settlement itself, the father of Pillappa i.e., Munishamanna passed away. As a result, in the said settlement deed, the elder son of original propositus Pillappa represented on behalf of minor son of Munishamanna as a guardian and this fact has not been considered by both the Courts.
14. It is contended that the defence set up by the defendants is that there was partition between Muniyappa and Munishamappa and it is the specific stand that item Nos.1 and 3 17 were allotted to Muniyappa in the said partition and the said partition is not proved by the defendants. It is contended that both the Courts presume this partition without there being any documentary proof of such partition having taken place between Muniyappa and his brothers. The finding of the Trial Court that there is a delay of 36 years in filing the suit as neither Pillappa nor the plaintiffs have taken any steps to partition the properties left in the joint possession of Muniyappa and Munishamanna is shocking and most perverse. There is no limitation for filing a suit for partition and claiming a share in the joint family properties. The very approach of both the Courts is erroneous. It is further contended that the First Appellate Court also committed an error and ought to have required to independently reconsider the pleadings and evidence on record and the Trial Court also committed an error in not referring the document of Ex.P1. But, surprisingly refers the same as a sale deed, though the same is a settlement deed and the First Appellate Court also blindly relied upon this version of the Trial Court. Hence, it requires interference of this Court.
18
15. When this Court heard the appeal and admitted the same, framed the following substantial question of law:
1. Whether the Appellate Court and Trial Court erred in concluding that Pillappa is not the son of Munishamappa @ Munishamanna in the light of contents of the Release Deed dated 27th September 1951?
16. Learned counsel appearing for the appellants in his argument would vehemently contend that no dispute with regard to the fact that a settlement deed was executed in the year 1951-92 and two sons of original propositus Pillappa and Siddamma went out from the joint family and those documents are also registered documents. The documents at Exs.P1 and P2 is clear that two sons have left the joint family and thereafter, other two sons i.e., Muniyappa, who is the father of the defendants and also the father of the minor son Pillappa i.e., Munishamappa passed away prior to execution of the settlement deed of the year 1951-52 and minor son was represented through his senior uncle Muniyappa i.e., the father of the defendant Nos.1 to 3 is not in dispute. The said Muniyappa is 19 the eldest son of Pillappa and Siddamma, who is also eldest uncle of said Pillappa. Both the Trial Court as well as the First Appellate Court failed to consider the main document i.e., Ex.P1, wherein reference was made that Pillappa was a minor and documentary evidence was not considered in proper perspective and no dispute that widow of Munishamappa had remarried. But, their contention is that Pillappa is the son of said Maranna, who is the second husband of Muddamma. Learned counsel appearing for the appellants brought to notice of this Court the very documents of Exs.P1, P2 and P3 which came into existence in the year 1951-52 and 1958.
17. Per contra, learned Senior counsel for respondent No.1 (1), (2), (4) to (6), 1(7)(3) and respondent Nos.2 and 3 would vehemently contend that, except Ex.P1, no documents are produced to claim that said Pillappa, who is the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4 is the son of Munishamappa @ Munishamanna. The document of Ex.D9 is very clear with regard to genealogical tree is concerned and death certificate is also not produced. Learned Senior counsel 20 would vehemently contend that Muddamma and Maranna were having four sons and in order to show that Pillappa is the son of Munishamanna, no documents are produced before the Trial Court. It is also contended that they have not disputed the said fact for about 50 years and also not explained the relationship between the parties relying upon any documents and failed to produce any documents with regard to their claim is concerned and no independent witnesses have also been examined to prove the case of the plaintiffs. He would also contend that both the Trial Court as well as the First Appellate Court considered the material on record, particularly the admission elicited from the mouth of P.Ws.1 and 2 during their cross-examination and concurrent finding was given. Hence, it does not require any interference.
18. In reply to the arguments of learned Senior counsel for respondent No.1 (1), (2), (4) to (6), 1(7)(3) and respondent Nos.2 and 3, learned counsel for the appellants would vehemently contend that Pillappa got married after the death of his father and in the written statement, not stated that Pillappa 21 is son of Maranna and the parties are the part of joint family and there would be no limitation in case the suit is filed for the relief of partition and both the Courts committed an error. Hence, the appellants are entitled for half share in the suit schedule properties.
19. In reply to the reply arguments of learned counsel for the appellants, learned Senior counsel for respondent No.1 (1), (2), (4) to (6), 1(7)(3) and respondent Nos.2 and 3 would contend that both the Courts have dealt with the matter and considered both oral and documentary evidence placed on record and with regard to the contentions which have been raised now, there is no pleading in the plaint.
20. Having considered the submissions of the respective counsels, the substantial question of law framed by this Court is whether the Appellate Court and Trial Court erred in concluding that Pillappa is not the son of Munishamappa @ Munishamanna in the light of contents of the Release Deed dated 27th September 1951. This Court has to re-analyze the material on record, since the main contention of the learned counsel for the 22 appellants throughout in his argument is that both the Courts committed an error in relying upon the documents of Exs.P1 and P2, particularly the document of Ex.P1 which is the document of the year 1951. Having read the document of Ex.P1, it is clear that a document came into existence on 23.07.1951 and the averment is also very specific that in favour of second son Sampanna, son of Pillappa, the remaining sons of Pillappa i.e., Muniyappa and minor son Pillappa, son of Munishamappa, who is the son of Pillappa and also Ramaiah, who is the fourth son and first son Muniyappa represented as minor guardian for Pillappa have executed a release bond in favour of Sampanna in respect of immovable properties and there was also reference with regard to the fact that already the movable properties are distributed.
21. Having considered the recitals of this document, it is very clear that third son Munishamappa had a son by name Pillappa, who is a minor and hence, there is a force in the contention of the learned counsel for the appellants that this document of Ex.P1 was registered long back in the year 1951 23 itself and the original propositus Pillappa and Siddamma had four sons and out of four sons, second son Sampanna @ Gare Sampanna left the joint family. It is also important to note that as per Ex.P2, a rectification deed dated 18.02.1958 was executed in respect of earlier document dated 02.06.1952 and an error had crept in while releasing the same is favour of other son Ramesh son of Pillappa and hence, the said rectification deed came into existence. Having perused this document also, it is very clear that other son Ramaiah also left the joint family taking his share vide document dated 02.06.1952 which was also registered and rectification deed was also executed. Hence, it is clear that earlier there were a settlement deed among two sons of original propositus Pillappa and Siddamma and no documentary evidence disclose that there was a partition between the first son Muniyappa and third son Munishamappa.
22. It is also important to note that in the cross- examination of D.W.1, though he contend that Pillappa is the son of Maranna and also claims that already there was a partition and item Nos.1 and 3 of the suit schedule properties were 24 allotted to the share of their father in the partition, but he clearly admits that original propositus Pillappa and Siddamma were having four sons and also admits that Pillappa was having ancestral property and that they are the children of Muniyappa. But, denies the suggestion that Munishamanna had a son by name Pillappa and states that he does not know how many children said Munishamanna was having and even he had gone to the extent of denying the document dated 27.09.1951, but he admits the registered document executed in favour of his uncle Ramanna dated 02.06.1952 and the Court has to take note of the conduct of D.W.1, since there was a reference in the document dated 27.09.1951 that Pillappa is the son of said Munishamanna and the said document was registered document and the same was denied that he is not aware of the same. But, admits the second document dated 02.06.1952 i.e., the settlement deed in favour of Ramanna. Even, a suggestion was made that in the document of 1951-52, a reference was made that Pillappa is the minor son of Munishamappa and the minor was represented by his father Muniyappa on behalf of Pillappa and document was executed by his father, but he denies that he 25 is not aware of the same and this conduct has not been taken note by the Trial Court and the First Appellate Court while appreciating the material on record. However, he categorically admits that he was aware of the document executed in the year 1951-52. He also categorically admits that there was no any partition between his father Muniyappa and Munishamappa during the life time of his father and hence, it is clear that there was no partition between Munishamappa and his father Muniyappa during the life time of his father.
23. He also categorically admits that after Sampanna and Ramanna, who took their share, the remaining lands were in possession of his father, but immediately he volunteers to state that those properties have not come together and categorically admits that he cannot tell as to what happened to the share of Munishamanna. These are the admissions elicited from the mouth of D.W.1 and when these answers are elicited from the mouth of D.W.1, both the Courts ought to have taken note of the conduct of D.W.1 while appreciating the material on record. It is also important to note that a suggestion was made that plaintiff 26 Nos.1 and 2 to 4 are the children of Pillappa i.e., son of Munishamappa and the said suggestion was denied saying that Munishamappa was not having any children. Hence, it is clear that with an oblique intention, the said suggestion was denied. But with regard to the fact that there was partition in respect of the property of Munishamappa and Muniyappa, no documentary evidence is placed before the Court.
24. No doubt, the defendants have partitioned the properties among themselves and subsequently, the documents are also produced before the Court, both the Courts accepted that there was partition among themselves and very pleadings of the plaintiffs is very clear that Munishamappa and Muniyappa continued in the joint family after the execution of document in favour of Sampanna and Ramanna in the year 1951-52 and even the father of the defendants also executed rectification deed in the year 1958. No doubt, in the cross-examination of P.W.1, she admits that her in-laws are Muddamma and Maranna, the said admission not takes away the case of the plaintiffs, since the document executed in the year 1951 itself clearly disclose that 27 Pillappa is the son of Munishamappa and the fact that Muddamma married Munishamappa is also not in dispute. No doubt, she categorically says that after 4 to 5 years of marriage, her in-laws passed away and also admits that after marriage, she is residing at Kurubarahalli along with her husband and also admits that after marriage, herself and her husband have not cultivated the agricultural land and during the life time of Munishamappa, she did not file any suit or any objections. She also admits that her three children are major and first son is aged about 40 years. But, she denies about kootke with her mother-in-law and Maranna and she also categorically says that her husband is the only son through Muddamma and also admits that no crop was given to them when her husband was alive.
25. All these oral evidence not excludes the document of Ex.P1 which came into existence in an undisputed point of time and there was clear reference in the registered document that Pillappa is the son of Munishamappa. No doubt, P.W.2 also in the cross-examination admits that the defendants have got partitioned the property 20 years back itself among themselves, 28 that itself will not defeat the right of the claim of the plaintiffs. No doubt, P.W.2 admits in the cross-examination that his father name is shown as Maranna in the voters list, but he has given an explanation that Maranna was taking care of Pillappa and hence the same was mentioned as Marappa. But, he has not produced any document to show that he was taking care of him. The fact that said Maranna married Muddamma subsequent to death of Munishamanna is not in dispute and none of the parties dispute the same. However, taking note of the document of Ex.P1, under which a settlement was made in favour of Sampanna @ Gare Sampanna, it is clear that a reference was made that father of the defendants represented as minor guardian to the husband of the plaintiff No.1-Pillappa and the same is an undisputed fact at the relevant point in time in the year 1951. When the documentary evidence disclose that Pillappa is the son of Munishamanna, the contentions of the defendants that he is the son of Maranna cannot be accepted and the same was not considered by both the Courts.
29
26. It is important to note that, even though oral evidence is against the plaintiffs with regard to not cultivating the properties after the marriage of P.W.1, but the fact is that settlement was made only in favour of Sampanna and Ramaiah, in terms of the other document of the year 1952 and Muniyappa, father of the defendants and the other brother Munishamanna was no more in the year 1951 itself, it is clear that the father of the defendants and the family of the Munishamanna continued together and may be the wife of Munishamanna i.e., Muddamma married once again, but the fact that Pillappa is the son of Munishamanna is an undisputed fact, having considered the document of Ex.P1 and subsequently, the children of said Muniyappa, who are the defendants in the suit cannot deny their own document of his father and both the Courts failed to take note of the documentary evidence and instead relied upon the oral evidence of the witnesses and the same cannot be accepted. Section 91 of the Evidence Act is very clear with regard to Exclusion of Oral Evidence by Documentary evidence and instead of relying upon the document of Ex.P1, both the Courts relied upon the oral evidence of parties and mere non-cultivation by 30 the plaintiffs cannot be a ground to come to an other conclusion that Pillappa is the son of Maranna and no material is placed by the defendants to prove the fact that Pillappa is the son of Maranna and when the documentary evidence is available on record, both the Courts ought to have taken note of the same and instead relied upon the oral evidence and accepted the contention of the defendants erroneously while answering issue Nos.4 to 6.
27. I have already pointed out that D.W.1 categorically admitted that there was no partition during the life time of his father Muniyappa and his senior uncle Munishamanna and at the time of settlement deed of the year 1951-1952 itself Munishamanna was not alive. When such being the case, answering issue Nos.1 to 3 excluding Pillappa that he is not the member of the joint family is erroneous. No doubt, Muniyappa purchased item No.2 of the suit schedule properties during his life time, the same cannot be a self-acquired property of Muniyappa and mere dividing the said property among the children of said Muniyappa cannot take away the right of 31 Pillappa, since there was no partition and after settling the properties in favour of Sampanna and Ramaiah, other two brothers continued in the joint family. Hence, all the properties have become joint family properties of plaintiffs and defendants and both the Courts committed an error in answering issue Nos.1 to 3 in an erroneous way. Hence, the plaintiffs are entitled for half share in the suit schedule properties and consequently with regard to the substantial question of law framed by this Court whether both the Courts committed an error in concluding that Pillappa is not the son of Munishamappa @ Munishamanna, no documentary evidence is placed on record to come to an other conclusion. On the other hand, Ex.P1 is very clear that he was the son of Munishamanna not Maranna. Hence, I answer substantial question of law in the 'affirmative'.
28. In view of the discussion made above, I pass the following:
ORDER
(i) The regular second appeal is allowed.32
(ii) The impugned judgment and decree of the Trial Court as well as the First Appellate Court are set aside and consequently, the plaintiffs are entitled for half share in the suit schedule properties as sought in the suit.
Draw preliminary decree accordingly.
Sd/-
JUDGE ST