Karnataka High Court
Eshwarachari vs Smt Saraswathamma on 25 February, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.543 OF 2017
BETWEEN:
1. ESHWARACHARI
S/O. VENKATARAYAPPACHARI
@ VENKATARAMACHARI,
AGED ABOUT 68 YEARS,
R/O. BELLURU VILLAGE,
NARASAPUR HOBLI,
KOLAR TALUK-563101.
2. LOKESH
S/O. ESHWARACHARI
AGED ABOUT 30 YEARS,
R/O. BELLURU VILLAGE,
NARASAPUR HOBLI,
KOLAR TALUK-563101.
3. SMT.CHANDRIKA
W/O. DR. GOVINDARAJU,
AGED ABOUT 28 YEARS,
R/O. VIJAYAPURA TOWN,
DEVANAHALLI TQ,
BENGALURU RURAL DISTRICT-562135.
4. KUMAR
S/O. ESHWRACHARI
R/O. BELLURU VILLAGE,
NARASAPUR HOBLI,
KOLAR TALUK-563101.
2
5. MALATHI
D/O. ESHWARACHARI
AGED ABOUT 22 YEARS,
R/O. BELLURU VILLAGE,
NARASAPUR HOBLI,
KOLAR TALUK-563101. ... APPELLANTS
(BY SRI. HARSHA D. JOSHI, ADVOCATE)
AND:
1. SMT. SARASWATHAMMA
W/O. ESHWARACHARI,
AGED ABOUT 57 YEARS,
THALAGAVARA VILLAGE,
KAIWARA HOBLI,
CHINTAMANI TALUK-563125.
2. SMT. SAROJAMMA
D/O. ESHWARACHARI,
W/O. N. SRINIVAS,
AGED ABOUT 37 YEARS,
ATHIGANAHALLI VILLAGE,
JANGAMAKOTE HOBLI,
SIDLAGHATTA TALUK-562105.
...RESPONDENTS
(VIDE COURT ORDER DATED 14.11.2019,
RESPONDENT No.2 IS TREATED AS THE LEGAL HEIR OF
DECEASED RESPONDENT No.1
AND STEPS TO BRING THE LEGAL HEIRS OF DECEASED
RESPONDENT NO.1 IS DISPENSED WITH;
RESPONDENT NO.2 - SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE
AGAINST THE JUDGMENT AND DECREE DATED 03.02.2017
3
PASSED IN R.A.No.6/2013 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 27.11.2012 PASSED IN O.S.No.193/2011
ON THE FILE OF THE LEARNED PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, KOLAR.
THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the defendants challenging the Judgment and Decree dated 27.11.2012 passed by the Court of Principal Senior Civil Judge and CJM., Kolar, in O.S. No.193/2011 and the concurring Judgment and Decree dated 03.02.2017 passed by the Court of II Additional District and Sessions Judge, Kolar, in R.A. No.6/2013.
2. For the sake of convenience, the parties in this Judgment are referred to as they were arrayed before the Trial Court. Appellants were the defendants while the respondents were plaintiffs before the Trial Court. The respondent No.1 died during the pendency of this appeal 4 and in terms of the Order dated 14.11.2019, respondent No.2 was treated as the legal heir of respondent No.1.
3. The plaintiff No.1 is the wife, and plaintiff No.2 is the daughter of defendant No.1. Defendant Nos.2 to 5 are the children of defendant No.1 from his second wife. The family tree as per Ex.P1 produced along with the appeal memorandum is extracted below:
F±ÀégÀZÁj (58 ªÀµÀð) 1£Éà ºÉA. ¸ÀgÀ¸ÀévÀªÀÄä (52 ªÀµÀð) 2£Éà ºÉA. ±ÁgÀzÀªÀÄä (40 ªÀµÀð)
1) ªÀgÀ®PÀëöäªÀÄä 2) ¸ÀgÉÆÃdªÀÄä (32) (¥sÀªÀw) CwÛUÁ£ÀºÀ½î ªÁ¸À
1) ¯ÉÆÃPÉñï (28) 2) ZÀA¢æPÀ (26) 3) PÀĪÀiÁgï (24) 4) ªÀiÁ®w (22)
4. It is the case of the plaintiffs that the suit properties were purchased by defendant No.1 in his name out of the accretion of the joint family properties and that defendant No.1 was mismanaging the affairs of the joint 5 family and that he had refused to allot the legitimate share of the second plaintiff. Hence, the plaintiffs sought partition and separate possession of the 2nd plaintiff's half share in the suit properties.
5. Defendant No.1 entered appearance and filed his written statement contending that he had purchased the suit properties out of his own earning, in terms of a deed of absolute sale dated 04.09.1980 and from that date, he had been in lawful possession and enjoyment of the suit properties and that the plaintiffs had no right, title or interest in the suit properties. He also stated that the plaintiff No.2 had relinquished all her rights over the suit schedule properties in favour of defendant No.1 in terms of an unregistered lease deed dated 18.10.2001 by accepting Rs.10,000/- in lieu of her share in the joint family properties. Thus, he contended that the plaintiffs are not entitled for a share in the suit schedule properties. He sought for dismissal of the suit with costs. 6
6. Based on the aforesaid pleadings, the Trial Court framed the following issues:
"(i) Whether the plaintiffs prove that
themselves and defendant No.1 are only
members of joint family?
(ii) Whether the plaintiffs further prove that defendant No.2 to 5 have no share in the suit schedule properties?
(iii) Whether the plaintiffs further prove that suit schedule properties are Hindu undivided joint family properties?
(iv) Whether the plaintiffs are entitle for half share in the suit schedule properties by metes and bounds?
(v) Whether the defendant No.1 proves that he had married Sharadamma as 2nd wife with consent of plaintiff No.1 and out of their wedlock defendant No.2 to 5 are born, thereafter plaintiff No.1 became unsound mind person and she left the company of defendant No.1?
7
(vi) Whether the defendant No.1 further proves that he had purchased suit schedule property from T.R.Sheshadri Iyengar under registered sale deed dt:4-9-1980 for valuable consideration, hence suit schedule properties are the self-acquired properties of defendant No.1?
(vii) Whether the defendant No.1 further proves that plaintiff No.2 has relinquished all her rights over the suit schedule properties in favour of defendant No.1 by taking Rs.10,000/- in lieu of her share in joint family properties under unregistered release deed dt:18-10-2011?
(viii) Whether the defendant No.1 further proves that Sharadamma 2nd wife of defendant No.1 is also necessary and proper party of the suit as alleged in the written statement?
(ix) What order or decree?"
7. Plaintiff No.1 was examined as PW.1 and a witness as PW.2 and they marked Exs.P1 to P11. The defendant No.1 was examined as DW.1 and two other 8 witnesses were examined as DWs.2 and 3 and they marked Exs.D1 to D13. The Trial Court held that defendant No.1 did not dispute the existence of a joint family and also that the family possessed ancestral properties some of which were in the hands of defendant No.1. The Trial Court also noticed the contention of the defendant No.1 that plaintiff No.2 had relinquished all her rights in the suit properties in his favour by accepting a sum of Rs.10,000/- in lieu of her share and executed an unregistered release deed dated 18.10.2001 and thus, admitting the share of the plaintiffs in the suit properties. These two contentions swayed in the mind of the Trial Court which compelled it to pass a Judgment and Decree decreeing the suit of the plaintiffs by declaring that plaintiff No.2 is entitled for half share in the suit schedule properties by metes and bounds.
8. The defendants aggrieved by the aforesaid Judgment and Decree filed an appeal before the First Appellate Court in R.A. No.6/2013. During the pendency 9 of the appeal, defendants filed application in I.A. No.3 under Order 41 Rule 27 of the Civil Procedure Code for production of additional evidence in the form of a family genealogy to contend that the suit filed for partial partition was not maintainable and that there were other properties available for partition which stood in the name of the uncles of defendant No.1. An application numbered as I.A. No.4 was filed by defendant No.1 seeking permission to produce five documents including genealogy of the family. The first appellate Court in para No.19 of its Judgment has observed that defendant No.1 had earlier produced a genealogical tree prepared by Village Accountant that was marked as Ex.D6. In respect of another document i.e., certified copy of sale deed dated 17.01.1986 sought to be produced by defendant No.1, the First Appellate Court observed that the same was already marked as Ex.P8 by the plaintiffs. Another application in I.A. No.5 was filed under Order 6 Rule 17 of the CPC by defendant No.1 seeking permission to amend the written statement. 10
9. The First appellate Court summoned the records, framed the points for consideration and rejected the applications in I.A. Nos.3 and 4 filed under Order 41 Rule 27 of the Code of Civil Procedure and I.A. No.5 filed under Order 6 Rule 17 of the CPC., and held that the defendant No.1 had in very categorical terms admitted the existence of the joint family and also that the family possessed other agricultural lands and thus, held that defendant No.1 had failed to prove that the suit properties were his self acquisition and consequently, dismissed the appeal and confirmed the Judgment and Decree of the Trial Court. Feeling aggrieved by the aforesaid Judgment and Decree of the Trial Court and the First Appellate Court, the defendants are in appeal before this Court in this Regular Second Appeal.
10. The learned counsel for the appellants contended that the Trial Court has failed to consider three facts: (i) that the suit for partial partition was not maintainable; (ii) there was a settlement between the 11 plaintiff No.2 and the defendant No.1 by which the plaintiff No.2 had given up her share in the suit properties and (iii) the First Appellate Court erred in law in not permitting the defendants to place on record the additional material documents. He, therefore, sought for interference with the Judgments and Decrees of the Trial Court and the First Appellate Court.
11. It is no doubt true that there is a presumption regarding jointness of a family, but there is no presumption regarding the jointness of the property possessed by a member of family. However, in the present case, there are two distinct factors, namely (a) defendants have categorically stated in their application for production of additional documents before the First Appellate Court that there were various other properties that belonged to the joint family and which were not brought into the suit for partition (b). defendant No.1 categorically admitted that the plaintiff No.2 had executed a release deed dated 18.10.2001 by which the plaintiff 12 No.2 had given up right, title and interest in the suit properties by accepting a sum of Rs.10,000/- as her share. The obvious conclusion would be that the defendant No.1 has admitted that the suit properties were accretion from out of the joint family properties and that the plaintiff No.2 also had a share therein. The Courts below have applied Section 8 of the Hindu Succession Act, 1956 and has declared that the plaintiff No.2 is entitled to half share in the suit schedule properties.
12. It is contended by the learned counsel for the appellants that the law declared by the Apex Court in the case of Pushpa Latha N.V. vs. V. Padma and others reported in ILR 2010 Karnataka 1484 is referred for adjudication to a larger Bench and therefore, the First Appellate Court could not have relied upon the Judgment of the Apex Court to return a finding that the plaintiffs are entitled to half share in the suit properties. The Judgment of the Apex Court in the case of Pushpa Latha (supra) which is referred to the larger Bench of the Apex Court 13 would not deprive the share of the plaintiffs in the suit properties in view of the Hindu Succession (Karnataka Amendment) Act, 1994 in terms of which plaintiff No.2 was entitled to claim as a coparcener. It is found from the family tree, Ex.P1, that the plaintiff No.2 was aged 32 years while in the plaint, age of plaintiff No.2 is shown as 35 years in the year 2011 and she was just on the cusp of being a major. Even assuming that the law declared by the Apex Court in the case of Pushpa Latha is not applicable to the case on hand, the right of the plaintiff No.2 in the suit properties cannot be denied. The Trial Court and the First Appellate Court have rightly applied the law and declared that the plaintiff No.2 is entitled for a share in the suit schedule properties. No substantial question of law arises for consideration in this appeal.
Accordingly, this Appeal is dismissed. 14 In view of dismissal of this appeal, I.A. No.1/2017 for stay does not survive for consideration and the same stands disposed of.
Sd/-
JUDGE sma