Karnataka High Court
K G Narasimha Murthy vs Smt Venkatalakshmamma on 31 May, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31ST DAY OF MAY, 2013
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
R.F.A.Nos.1300/2008 c/w 963/2008 (PAR)
IN R.F.A.No.1300/2008
BETWEEN:
K.G.NARASIMHA MURTHY,
S/O LATE K.G.GOPALA RAO,
AGED ABOUT 62 YEARS,
NO.118, 5TH CROSS ROAD,
KODANDARAMAPURAM,
BANGALORE-560 003. ... APPELLANT
(BY SRI: UDAY.S.HOLLA, SR.COUNSEL, FOR SRI.D.P.SHIVAPRASAD, AND
SMT.PADMAREKHA, ADVS.)
AND:
1. SMT.VENKATALAKSHMAMMA,
SINCE DEAD, REP. BY DEFENDANT
NOS.2 & 3 AS LRS.
2. K.RAMACHANDRA,
BY LRS, S/O GOPALA RAO,
AGED ABOUT 62 YEARS,
DENTAL TECHNICIAN,
NO.19, BINNY LAYOUT
VIJAYANAGAR,
BANGALORE-560 040.
2(a) SMT.KUMUDA,
W/O LATE K.RAMACHANDRA,
AGED 59 YEARS,
2(b) SMT.SOWMYA,
D/O LATE K.RAMACHANDRA,
AGED 33 YEARS,
NO.24, M.C.LAYOUT,
18TH MAIN, VIJAYANAGAR,
BANGALORE-40.
2(c) SMT.SAGEETHA,
D/O LATE K.RAMACHANDRA,
2
AGED 31 YEARS.
2(d) SRI.MURULI,
S/O LATE K.RAMACHANDRA,
AGED 27 YEARS.
PROPOSED 2ND RESPONDENT LRS.
2(a), (c), & (d) ARE RESIDENTS OF
NO.20, BINNY LAYOUT, NEAR PIPELINE,
VIJAYANAGAR, BANGALORE-40.
(AMENDMENT CARRIED OUT AS PER
ORDER DATED 17/6/2011)
3.SMT KAUSALYA,
AGED ABOUT 60 YEARS,
W/O SRI J.G.SUBRAMANYA,
RESIDING AT No. 119,
KODANDARAMAPURAM,
5TH CROSS, MALLESWARAM,
BANGALORE-560 003.
4.SMT JANAKAMMA,
W/O SRI.K.G.NARASIMHA MURTHY,
AGED ABOUT 75 YEARS,
R/OF MAKHOHALLI, NELAMANGALA
TALUK, VISHWANEEDAM POST,
BANGALORE-560091, SINCE DEAD,
(SUIT ABATED)
5.CHANDRASEKHAR,
S/O LATE NANJAPPA,
AGED ABOUT 53 YEARS,
POSTMAN, NO.118,
OLD NO.31, NEW NO 62,
V CROSS, KODANDARAMAPURAM,
MALLESWARAM, BANGALORE-560 003.
6.P.SRIRAMA SETTY
MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE APPELLANT.
7.SRIDHAR,
MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE APPELLANT.
8.ANANTHALAKSHMI,
MAJOR IN AGE,
3
FATHER'S NAME NOT KNOWN
TO THE APPELLANT.
9.JAYARAJU ,
S/O LATE RAMARAO,
MAJOR IN AGE.
10.M.P.PRABHAKAR,
MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE APPELLANT.
11.N.NARASIMHAIAH,
MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE APPELLANT.
THE RESPONDENTS 6 TO 11 ARE
RESIDING AT NO.118, OLD NO.118,
OLD NO.31, AND NEW NO. 62,
V CROSS, KODANDARAMAPURAM,
MALLESWARAM, BANGALORE-560 003.
12.SRI.KRISHNA,
FATHER'S NAME NOT KNOWN
TO THE PLAINTIFF,
R/AT NO.20, BINNY LAYOUT,
BANGALORE-560 040.
13.SALIM, MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE PLAINTIFF, PROPRIETOR:
ARAB TRAVELS.
14.RAJENDRA, MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE PLAINTIFF, PROPRIETOR:
BHAVANI TAILORS.
15.KISHORE, MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE PLAINTIFF, PARTNER:
MANIBHADRA AUTOMOBILES.
16.RAMACHANDRA, MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE PLAINTIFF, PROPRIETOR:
BALAJI ENTERPRISES.
4
THE RESPONDENTS 12 TO 16 ARE
CARRYING ON THEIR BUSINESS
IN DIFFERENT SHOPS IN THE
PREMISES NO.20, BINNY LAYOUT,
BANGALORE-560 040.
17.SUNDAR, MAJOR IN AGE,
FATHER'S NAME NOT KNOWN
TO THE APPELLANTS,
PROP: MURUGAN AUTO GARAGE
CARRYING ON BUSINESS IN
PREMISES NO.19, BINNY LAYOUT,
BANGALORE-560 040.
18.C.CHANDRA, MAJOR IN AGE,
W/O SRI KEVAL CHAND,
NO.118, OLD NO.31, NEW NO.62,
5TH CROSS, KODANDARAMAPURAM,
MALLESWARAM,
BANGALORE 560 003.
19.C.V.L.SHASTRI,
AGED MAJOR,
FATHER'S NAME NOT KNOWN
TO THE PLAINTIFF,
GANDHINAGAR, BANGALORE-560 009.
20.PRAKASH,
AGED MAJOR,
FATHER'S NAME NOT KNOWN
TO THE PLAINTIFF,
NO.19, BINNY LAYOUT,
VIJAYANAGAR,
BANGALORE -560 040. ... RESPONDENTS
(BY SRI: K.V.NARASIMHAN, ADV. FOR R3, SRI.HARISH KUMAR, ADV. FOR
R2(A TO D), R5 TO 14 AND R18 TO 20)
*****
THIS RFA IS FILED U/S 96 CPC AGAINST THE JUDGMENT AND
DECREE DATED:24.7.2008 PASSED IN OS.NO.6672/1990 ON THE FILE OF
THE I ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE, PARTLY
DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION IN
RESPECT OF ITEM NOS. 2 TO 4 OF THE SUIT SCHEDULE 'A' PROPERTY
AND DISMISSING THE SUIT IN RESPECT OF ITEM NO.1 OF SUIT
SCHEDULE 'A' PROPERTY AND SUIT SCHEDULE 'B' PROPERTY INCLUDING
MESNE PROFITS AND THE APPELLANT HEREIN PRAYS TO REVERSE AND
SET ASIDE THE ABOVE JUDGMENT AND DECREE AND TO GRANT A
5
DECREE IN FAVOUR OF THE PLAINTIFF/APPELLANT AS PRAYED FOR FULLY
AND IN ENTIRETY.
IN R.F.A.No.963/2008
BETWEEN:
K.RAMACHANDRA,
BY LRS, AGED ABOUT 63 YEARS,
S/O K.G.GOPALA RAO(LATE)
R/AT NO.20, BINNY LAYOUT
HOSAHALLI EXTENSION,
VIJAYANAGAR, BANGALORE-560 104.
1. SMT.KUMUDA,
W/O LATE K.RAMACHANDRA,
AGED ABOUT 59 YEARS.
2. SOWMYA.K.R,
D/O LATE K.RAMACHANDRA,
AGED ABOUT 33 YEARS.
3. SANGEETHA.K.R,
D/O LATE K.RAMACHANDRA,
AGED ABOUT 31 YEARS.
4. MURALI.K.R,
S/O LATE K.RAMACHANDRA,
AGED ABOUT 27 YEARS,
(AMENDMENT CARRIED OUT AS PER
THE ORDER DATED 17/06/2011) ... APPELLANTS
(BY SRI: V.P.KULKARNI, ADV. AND
SRI.M.S.HARISH KUMAR, ADV.)
AND:
1.K.G.NARASIMHA MURTHY,
S/O LATE K.G.GOPALA RAO,
AGED ABOUT 60 YEARS,
R/AT NO.19, BINNY LAYOUT,
HOSAHALLI EXTENSION,
VIJAYANAGAR, BANGALORE-104.
2.SMT KAUSALYA,
S/O LATE K.G.GOPALA RAO,
AGED ABOUT 58 YEARS,
R/AT NO.119, 5TH CROSS ROAD,
KODANDARAMAPURAM,
6
BANGALORE-560 003. ... RESPONDENTS
(BY SRI: UDAY.S.HOLLA, SR. COUNSEL FOR SRI.D.P.SHIVAPRASAD AND
SRI.C.V.NAGESH FOR R1, SRI.K.V.NARASIMHAN, ADV. FOR R2)
*****
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGEMENT AND
DECREE DATED 24.07.2008 PASSED IN OS.NO.6672/1990 ON THE FILE
OF THE I ADDL.CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY,
(CCH.NO.2), PARTLY DECREEING THE SUIT FOR PARTITION AND
SEPERATE POSSESSION.
THESE APPEALS BEING RESERVED AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
RFA.No.1300/2008 is filed by the plaintiff while RFA.963/2008 is filed by defendant No.2, respectively assailing the judgment and decree passed in O.S.No.6672/1990, by the First Additional Civil Judge, Bangalore City dated 24/07/2008.
For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
2. It is the case of the plaintiff that "A" and "B" Scheduled items of the suit schedule properties are the joint family properties of the plaintiff and defendants No.1 and 2. Plaintiff and the 2nd defendant are brothers, who have 7/12th undisputed share in the suit properties. The first defendant is their mother, who has 1/12th share, the third defendant is the married sister who has also 1/12th 7 share in suit Item Nos.1 to 3 of "A" schedule property and the fourth defendant is having a right of maintenance over half share in suit Item No.1 of "A" schedule, being the widowed sister-in-law of plaintiff's father. Defendants 3 and 4 are not members of the joint family of the plaintiff and defendants 1 and 2 and they have no right in plaint "B" schedule properties. Defendants 5 to 11 are the tenants in occupation of different tenements in Item No.2 of plaint "A" schedule. Defendants 12 to 16 are the tenants in Item No.3 of plaint "A" schedule as also defendant No.17. Defendants 1 and 2 are collecting rents from these defendants, but are not rendering accounts to the plaintiff. That a sum of Rs.6,620/- per month is collected as rents from Item Nos.2 to 4 of Schedule "A".
3. The genealogy of the family is as follows:-
That, one late Gopalaiah, son of Koverappa of Kodigehalli, was the paternal grand-father of Plaintiff's father. He had two sons namely, K.G.Narasimhamurthy and K.G.Gopala Rao. The latter is the father of the plaintiff 8 and defendant No.2 and defendant No.3. Defendant No.3 was married in the year 1968. First defendant is the widow of K.G.Gopala Rao, 4th defendant is the wife of late K.G.Narasimhamurthy - eldest son of late Gopalaiah.
Defendants 1 and 2 and late K.G.Gopala Rao, constituted a Hindu joint family and after latter's death, the plaintiff and defendant Nos.1 and 2 are continuing as members of the joint family.
4. That the plaintiff was married in the year 1972. Thereafter, certain misunderstandings developed between the members of the family and in order to preserve domestic peace and harmony, the plaintiff began to reside separately in one of the tenements in Item No.2 to plaint "A" Schedule property. Defendants 1 and 2 continued to live in the joint family house, Item No.3 of "A" Schedule property even after the demise of the plaintiff's father in the year 1975. That first defendant for her own convenience, occupied another tenement in Item No.2 of "A" Schedule property. Till 1988, defendant No.1 was 9 supplying ration obtained through the joint family ration card to the plaintiff and she was visiting the house of the plaintiff frequently but her mind was poisoned against the plaintiff by defendants 2 and 3 and her son-in-law and as a result, she stopped visiting the house of the plaintiff. That third defendant, who has been married has fractional interest in Item Nos.1 to 3 of "A" Schedule property after death of her father and the fourth defendant, has a right of maintenance in one half-share of Item No.1 of "A" Schedule property. That Item No.1 of "A" Schedule property is ancestral property remaining during the lifetime of the plaintiff's grand father.
5. Plaintiff's grand father, plaintiff's father and his elder brother K.G.Narasimhamurthy initially, constituted a joint family coparcenery having 1/3rd undivided share in the same. Upon the death of the plaintiff's grand father, the plaintiff's father and his elder brother succeeded to the property to an extent of half share each. That the plaintiff's father acquired total interest on Item No.1 of "A" 10 Schedule property on the death of his elder brother but by virtue of Section 14 of the Hindu Succession Act, the fourth defendant may have half share in the said Item. That on the death of plaintiff's father in the year 1971, plaintiff and defendants 1 to 3 succeeded to his 1/3rd share, each acquiring 1/12th share. Thus, the plaintiff has acquired 1/12th share each, in the said Item, subject to fourth defendant's right of maintenance in one half share of her deceased husband. The first defendant is not entitled to any interest or share in the other suit items, which are of subsequent acquisitions of late K.G.Gopala Rao and his sons second defendant and the plaintiff, out of their incomes and savings. The third defendant has no share in the Item No.4 or in plaint "B" Schedule property.
6. That the plaintiff's late father, K.G.Gopala Rao settled in Bangalore, after joining service at Binny Mills as a Clerk and after 36 years of service took voluntary retirement. He was also working privately as an Accountant in several firms in addition to his employment 11 in Binny Mills, till his death in the year 1971. He was having an average monthly income of Rs.3,000/- and received monetary benefit of Rs.30,000/- on retirement. He was also earning interest by lending monies. Being a man of frugal habits, he had saved a lot of his income. He had permitted the fourth defendant to make use of the income derived from the agricultural lands towards her maintenance as it was quite meager. Plaintiff's father out of his own funds acquired Item No.2 of plaint "A" Schedule property as a vacant site in the year 1948 in the name of the first defendant his wife, put up construction over it from time to time and he started living there since the year 1949 till his death in 1971 in one of the tenements along with the plaintiff and defendants 1 to 3 and he let out the other tenaments to different tenants. The said property was purchased out of joint family funds, though the katha stands in the name of the first defendant. The fourth defendant started earning as a Dental Technician in the Dental College since the year 1967. The plaintiff was appointed as Postman in the year 1971. Both were 12 earning meager salaries during the lifetime of their father. But they were contributing a substantial part of their earnings to the joint family hotch pot. The first defendant hailed from a poor family and did not have any income of her own. That suit Item No.3 was acquired by the plaintiff's father in the year 1968 by way of allotment from Binny Mills Employees' House Building Co-operative Society, out of his own funds for the benefit of his family and after his death, plaintiff and defendants 1 and 2 put up construction on the said property and shifted their residence from Item No.2 of plaint "A" Schedule property to Item No.3 in the year 1975. The katha of suit Item No.3 of "A" Schedule property originally stood in the name of his father and afterwards it was transferred in the name of first defendant as she became the head of the joint family. Item No.4 of "A" Schedule property was acquired in the name of the second defendant, the eldest son at the instance of the first defendant from out of the joint family funds by a registered sale deed dated 16/01/1978 for a sum of Rs.8,000/- as a vacant site for the benefit of the 13 joint family. The plaintiff was married in the year 1978 and for the sake of domestic harmony, he and his wife started living in a tenement on Item No.2 of plaint "A" Schedule property. Second defendant also shifted to another tenement in the said Item. First defendant also shifted to another tenement in the said Item. First defendant occupied one of the tenements in Item No.2 after it became vacant in the year 1984. That in the year 1986, some of the Items of the joint family namely agricultural lands were sold by defendants 1, 2 and 4 and the plaintiff jointly. A portion of the sale proceeds were given to the fourth defendant as a consideration for giving up her interest in her husband's share in the property and the remaining portion was given to the hands of defendants 1 and 2 and they along with the plaintiff put up construction on Item No.4 of plaint "A" Schedule property in the year 1988 and thereafter, the said property has been leased out to tenants.
14
7. Since 1977 till 1983 plaintiff, defendants 1 and 2 had jointly borrowed monies from time-to-time, from Pragathi Co-operative Bank, Malleshwaram, and have effected improvements to the plaint "A" Schedule property. During this period, valuable movables were also acquired in the form of gold and silver articles. The second defendant had also travelled to Singapore at the cost of joint family funds and had purchased valuable foreign goods. That the first defendant in collusion with defendants 2 and 3 is harassing the plaintiff and his wife and false petty criminal cases have been instituted against the latter; that plaintiff has lodged a criminal complaint in the CMM Court, Bangalore, against defendants 1 and 2 for forging his signature for obtaining the loan on the security of Item No.3 from Pragathi Co-operative Bank in the year 1988. Plaintiff got issued a registered notice dated 26/01/1989 to defendants 1 and 2 demanding partition of suit Item Nos.2 to 4 in plaint "A" Schedule property by metes and bounds but defendants 1 and 2 have sent a false and untenable reply.
15
8. That plaint "B" Schedule properties have been acquired substantially by the plaintiff and defendants 1 and 2 after the death of their father out of joint family funds. But defendants 1 and 2 have been mismanaging joint family properties. That the fourth defendant has no share in the plaint schedule properties excepting life interest in Item No.1 of the plaint "A" Schedule property. As the defendants 1 and 2 were dodging to effect family partition of the plaint schedule properties since the year 1984 and mismanaging them without accounting to the plaintiff, hence, the suit for partition and separate possession was filed.
9. After service of suit summons and notices, the first defendant appeared and filed her written statement denying the various averments made in the plaint. However, she admitted that Item No.1 of plaint "A" Schedule property is the only ancestral joint family property; that Item No.2 is the self acquired property of the first defendant out of her independent income earned 16 by preparing and selling palm leaves and with the monetary assistance from her aunt Smt.Lingamma, who has no children. That Item No.3 was acquired by the plaintiff's father by way of allotment by Binny Mills Employees House Building Co-operative Society as a vacant site and later, defendants 1 and 2 put up construction out of the joint family funds but the actual truth about Item No.3 is not within the knowledge of the defendant. Similarly, acquisition of Item No.4 of plaint "A" Schedule property is not within the knowledge of the defendant. That the proceeds of sale of Item No.1 of plaint "A" Schedule property was utilized for putting up of construction on Item No.4 is denied. While, denying all other averments and allegations made in the plaint, the first defendant sought dismissal of the suit.
10. Defendant No.3 filed a written statement also denying all the allegations and averments in the plaint to contend that she is entitled to a share equal to that of the plaintiff. It was however admitted that plaintiff and his 17 wife had ill treated defendant No.1 who started living separately next to the residence of defendant No.3 who took care of defendant No.1. That defendant No.1 during the lifetime of her husband kept herself busy by doing business in clothes, selling plantain leaves and incense sticks; that Item No.2 was purchased by defendant No.1 out of her own income and she has constructed a house from her own funds. Defendant No.1 was assisted by Smt.Lingamma financially, for the purchase of Item No.2 of plaint "A" Schedule property. Defendant No.1 has executed a Will in favour of defendant No.3 in respect of Item No.2 of plaint "A" Schedule property; as Item No.2 in the plaint "A" Schedule property is self-acquired property of defendant No.1, she has every right to make a Will in respect of the property and the same is not available for partition. The third defendant is also entitled for proportionate share in respect of Item Nos.3 and 4 of plaint "A" Schedule property as these properties are purchased out of the funds given by the defendant No.1. She is also entitled for a proportionate share in plaint "B" 18 Schedule property. It was also stated that the plaint does not include the second floor in Item No.2 of the "A" Schedule property and therefore, a suit for partial partition is not maintainable. Hence, the plaintiff is not entitled to any relief.
11. Significantly, defendant No.2 did not file any written statement but had sought to adopt the written statement filed by defendant No.1.
12. On the basis of the rival pleadings, the trial Court framed the following issues and additional issues for its consideration:-
"3. On these pleadings of the parties, my learned predecessor in office, has framed the following issues and I have framed an additional issue as follows:
(1) Does the plaintiff prove his joint possession and enjoyment of suit schedule property as joint acquisition?19
(2) Whether the plaintiff is entitled for the partition and separate possession of his 3/7th share in the suit property?
(3) Whether the plaintiff is entitled for mesne profits?
(4) To what reliefs the parties are entitled?
Addl. Issue framed in 14.02.2008 (1) Whether the 3rd defendant proves that all the joint family properties are not included for partition?"
13. In support of his case, plaintiff examined himself as P.W.1 and one Prahlad Rao as P.W.2. He produced 52 documents, which were marked as Exs.P.1 to P.52. While the defendants examined first defendant as D.W.1, the third defendant as D.W.4, the second defendant as D.W.3 and one Smt.Lingamma as D.W.2 and produced 6 documents, which were marked as Exs.D.1 to D.6.
14. On the basis of the said evidence, the trial Court answered Issue No.1 in the affirmative and on Issue No.2 it was held that the plaintiff is entitled to 1/3rd share 20 in Item Nos.2 to 4 of the suit schedule properties. On Issue No.3, it was held that the plaintiff is not entitled to anything. Additional Issue No.1 did not survive for consideration and accordingly, the trial Court partly decreed the suit in respect of Item Nos.2 to 4, holding that the plaintiff is entitled to 1/3rd share and separate possession in Item Nos.2 to 4 of plaint "A" Schedule property; that the suit was dismissed vis-à-vis Item No.1 of Schedule "A" and also in respect of Schedule "B" properties and the prayer for mesne profits was also declined. A direction was issued to effect partition in Item Nos.2 to 4 in "A" Schedule property by appointing a Court Commissioner.
15. Being aggrieved by the said judgment and preliminary decree, the plaintiff and the second defendant filed their respective appeals.
16. I have heard the learned senior counsel for the appellant in R.F.A No.1300/2008 and the learned counsel for the appellants in R.F.A No.963/2008 and respondents 21 in both the appeals and perused the material on record as well as original records.
17. It is contended on behalf of the appellant in R.F.A. No.1300/2008 that the trial Court was not right in declining to grant a share in Item No.1 of "A" Schedule property on the premise that the suit property had been sold on 23/12/1998 during the pendency of the suit and therefore, was not available for partition. That Item No.1 is admittedly ancestral joint family property, there was an order of injunction with regard to its alienation operating since 23/01/1995. In violation of the said order, the property was sold on 23/12/1998. In fact, no evidence with regard to the sale had also been produced. Therefore, the trial Court could not have assumed that there was a valid alienation of the suit property based on the statement made by the counsel and therefore, was not available for partition. Rather, as the alienation had taken place during the pendency of the suit, the principles of lis pendens as stated in Section 52 of the Transfer of Property 22 Act is applicable and the plaintiff ought to have been granted a share in Item No.1 of "A" Schedule property also.
18. It was next contended that the dismissal of the suit with regard to "B" Schedule items as well as on mesne profits is incorrect and therefore, the plaintiff is entitled to those reliefs also. That defendant No.3 was born prior to the enforcement of Hindu Succession Act, 1956 and therefore, in terms of the decision of the Division Bench of this Court in Pushpalatha's case, the third defendant is not entitled to any share in the suit schedule items except the self-acquired property of her parents.
19. Placing reliance on certain decisions, learned senior counsel along with other counsel prayed that the judgment and decree of the trial Court be modified and the suit be decreed in favour of the plaintiff in respect of all the suit schedule items and further, grant a direction for calculation of mesne profits.
23
20. Per contra, learned counsel for respondent No.3, who was defendant No.3 in the suit, contended that defendant No.3 is entitled to a share in all the suit schedule items having regard to the recent decision of the Hon'ble Supreme Court in 2011 (9) SCC 788. That as far as Issue No.1 of "A" Schedule property is concerned, the said lands were sold by consent of all the parties to NTI Co-operative Society and in return, apart from the sale consideration, a site was also given to the plaintiff, which has been admitted in his cross-examination. Therefore, the plaintiff cannot now aprobate and reprobate. That Item No.2 is the self-acquired property of defendant No.1 vide Ex.P.8. The said property was acquired by her in the year 1948 under a registered sale deed. She has in fact bequeathed the said property to defendant No.3 and others. Therefore, the said item is not available for partition. That item No.3 of "A" Schedule property is the self-acquired property of the father of the plaintiff as per Ex.P.19 and all his heirs have an equal share in the suit item, it cannot be considered to be joint family property. 24 Therefore, the trial Court was not right in granting a partition of Item Nos.2 and 3 as if they are joint family property as they are self acquired properties of the parents of respondent No.3. Item No.1 was anyway not available for partition as the same has been sold, while Item No.4 is the self acquired property of Defendant No.2. The suit of the plaintiff, therefore, ought to have been dismissed in entirety. On the other hand it was also contended that, if the plaintiff and Defendant No.2 have a share in all these properties, then Defendant No.3 would also have an equal share therein as has been held by the trial court.
21. Placing reliance on certain decisions, learned counsel has elaborated on the said contentions.
22. Learned counsel appearing for defendant No.2 while adverting to his independent appeal has stated that the trial Court was right in not granting any partition in Item No.1 of "A" Schedule property. As far as Item Nos.2 and 3 are concerned, he supported the arguments made on behalf of respondent No.3. As far as Item No.4 is 25 concerned, it is his contention that the same was purchased on 16/01/1978 as per Ex.P.9 after the death of his father out of his own earnings. Therefore, the trial Court was not right in granting a partition in respect of Item Nos.2 to 4 of "A" Schedule property.
23. Learned counsel further contended that the plaintiff has not let in any evidence to show that there was joint family nucleus out of which, the other properties were acquired so as to have acquired the characteristics of joint family properties. That the burden was cast on the plaintiff to prove not only that there was a joint family property but also that there was income from the joint family property out of which, the other suit schedule items were purchased before seeking a partition in the said suit items. In the absence of there being any joint family nucleus, the suit items could not be considered to be joint family properties. Therefore, the trial Court ought to have dismissed the suit. Reliance has been placed on 2003 SC 3800 and 2007 SC 1808 in this regard.
26
24. Along with the appeal, certain applications have been filed. One of them being an application under Order XLI Rule 27 of the Civil Procedure Code [CPC], to produce by way of additional evidence a certified copy of the Will dated 04/11/1999 said to have been made by defendant No.1 in favour of defendant No.3 and others. Therefore, a prayer has been made by heirs of defendant No.2 to allow the said application, so as to prove that Item No.2 of "A" Schedule property is the self acquired property of first Defendant, which has been bequeathed amongst others to third defendant and therefore, the plaintiff cannot claim any share in the suit property. Respondents' counsel therefore, sought dismissal of the appeal filed by the plaintiff and that the appeal filed by the second defendant be allowed.
25. The submission of the counsel for the defendant No.3 is that in case any of the suit schedule items are held to be joint family properties, then the third defendant would have a share equal to that of the plaintiff, 27 as per the recent amendment to Section 6 of the Hindu Succession Act, 1956. On the other hand, if any of the suit items is held to be separate property of the parents of the plaintiff and defendant Nos.2 and 3, then in that event, she would be entitled to any equal share as a successor. In this context, defendants 2 and 3 have supported each other with regard to the nature of the suit items in "A" Schedule properties.
26. In reply, learned senior counsel for the plaintiff, reiterating his submission has stated that the application for additional evidence cannot be allowed at this stage as none of the contentions stated in Rule 27 of Order XLI CPC have been made out. Also Item No.2 of "A" Schedule property was acquired out of the joint family funds but in the name of Defendant No.1. Defendant No.1 could not make a will in respect of that item. That Item No.3 of "A" Schedule property was the separate property of plaintiff's father but the joint family has put up construction thereon. Therefore it has assumed the 28 character of joint family property. Defendant No.2 has not filed an independent written statement and defendant No.1 has stated that she is not clear about the acquisition of Item No.4. The said suit property was acquired in the name of defendant No.2 out of joint family funds and when the family was joint. As far as Item No.1 is concerned, as the Doctrine of lis pendens applies, it is also available for partition. Therefore, the trial Court ought to have granted partition and separate possession of all suit schedule items and also directed for accounting of mesne profits.
27. Having heard the learned counsel on both sides and on perusal of the material on record as well as the Lower Court Records, the following points would arise for my consideration:-
i) Whether the plaintiff has proved that there was joint family nucleus?
ii) Whether the trial court was right in holding that item No.1 of plaint 'A' schedule property was not available for partition?29
iii) Whether the trial court was right in holding that item No.2 of schedule 'A' is joint family property?
OR Whether item No.2 of the suit schedule property is the separate property of defendant No.1?
iv) If so, whether the application filed under Order XLI Rule 27 of the Code of Civil Procedure for additional evidence is to be allowed?
v) Whether the trial court was right in holding that item No.3 of schedule 'A' was available for partition as a joint family property?
vi) Whether the trial court was right in holding that item No.4 of schedule 'A' was available for partition as a joint family property?
vii) Whether the trial court has rightly determined the share of the plaintiff?
viii) Whether the trial court was right in dismissing the suit with regard to 'B' Schedule Property?
ix) Whether the trial court was right in declining the mesne profits?
x) What order?
28. There is no dispute with regard to the
relationship between the parties. During the pendency of 30 the suit, Defendant Nos.1 and 4 died, while during the pendency of the appeals defendant No.2 died. There is also no dispute that item No.1 of 'A' schedule property are ancestral joint family property. Ex.P1 to P7 are the documents in this regard. There is also no dispute that item No.3 of schedule 'A' property is the self-acquired property of the father of the plaintiff and defendant Nos.2 and 3 on which construction was put up subsequently by the family.
29. As far as item No.2 of schedule 'A' is concerned, it is the case of the plaintiff that it was acquired in the name of defendant No.1 out of joint family funds. But the same is denied by the defendants who contend that the said item is the self-acquired property of defendant No.1. As far as item No.4 of schedule 'A' is concerned, the case of the plaintiff is that the said item is a joint family acquisition. This is denied by the defendants. In the written statement filed by defendant No.1, it is stated that it is not within her knowledge as to 31 whether the said item was purchased by defendant No.2 out of his own funds. Defendant No.3 has stated that item No.4 has been purchased out of the funds given by defendant No.1. Defendant No.2 has not filed any written statement, but has adopted the written statement of defendant No.1. But in his evidence, he has stated that item No.2 is his self-acquired property. Therefore, defendant No.2 has also filed an independent appeal. In the light of the aforesaid undisputed facts and pleadings, each of the points is taken up for consideration in seriatim.
30. At the outset, it would be useful to state certain elementary postulates regarding joint family and joint family property which is summarized from the treatise of the learned author, Sri N.R.Raghavachariar, on "Hindu Law-Principles and Precedents".
31. It is well settled that an undivided family, which is the normal condition of Hindu society is joint not only in estate, but also in food and worship. The joint family status is a result of birth, possession of joint 32 property is only an adjunct of the joint family and is not essential for its constitution. Coparcenary is a narrower body than a joint family and consists of only those persons who have taken by birth an interest in the property of the holder for the time being and could enforce a partition whenever they like. Joint family property is quite distinct from joint ancestral property. While joint family property belongs to a joint Hindu family in the case of a joint ancestral family property, the joint family property which belongs to a joint Hindu family must also be ancestral. Therefore, there must have been a nucleus of a joint family property before an ancestral joint family property can come into existence. Thus, there can be no ancestral joint family property without previous nucleus of joint family property. But there can be joint family property without a pre-existing nucleus. Where there is a sufficient nucleus of property in possession of the members of the joint family as descended from a paternal ancestor, the presumption is that the whole property is ancestral. Where property is admitted or proved to be joint family 33 property, it is subject to exactly the same legal incidents as the ancestral joint family property.
32. Ancestral property is a technical term which refers to property inherited from a paternal ancestor within the third degree. The character of ancestral property is not taken away by there being a partition of property in the family of the inheritor. Though the share of ancestral property allotted to a coparcener on partition will be his separate property but it will be ancestral property in relation to the allottee's sons, grandsons and great- grandsons whether born before or after the partition. All properties acquired either with the income of ancestral property, or the proceeds of sale of such property, or with the aid of ancestral property, or which are accretions thereto or augmentations thereof, will become joint family property in the hands of the acquirer. This is so even when the property is purchased by a sole owner out of the income of ancestral estate before a son is born to him. Also property acquired by the joint exertions of the 34 coparceners without the aid of the ancestral assets, must be presumed to be joint family property. But this presumption does not arise where the acquirers are not the coparcenary members or where they are living separately and not under the same roof as coparceners are ordinarily expected to live. It can also be rebutted even when the acquisition is made by all the members by proof of intention on their part to treat the acquisition as a partnership property governed by the Contract Act or as joint property with the incident of survivorship as between the acquirers, but without the right by birth accruing to their sons.
33. If a coparcener having a separate property, voluntarily throws it into the joint stock with the intention of abandoning all separate claims upon it, then it becomes joint family property with all its usual incidents. Property may be held by a coparcener absolutely and free of all claims from the rest of the coparceners in which case it is known as separate or self-acquired property. Where a 35 coparcener acquires property without the aid of the joint family funds, it becomes his separate property.
34. As a joint family is the normal condition of Hindu society and a Hindu family is presumed to be joint, the burden of proving separation is upon the person alleging it. But there is no presumption that because a family is joint, it possesses any joint property. In deciding the question whether the property purchased by a joint family member in his own name is joint family property or the separate property of that member, the criterion is to consider from what source the purchase money was paid, whether it came from the joint family chest or from the separate funds of the member purchasing it. But before the property in possession of any one coparcener can be presumed to be a joint family property, it is necessary to establish the existence of the nucleus of joint family property, a nucleus out of which the property in the hands of the coparcener may be fairly said to have grown. But if the nucleus proved is not sufficient to help the acquisition, 36 the acquisition cannot be said to be joint property. Where such nucleus is admitted or proved in the case of a member claiming certain properties as his self-acquired properties, the onus is upon him to prove that they are his self-acquisition and this presumption is not rebutted merely by showing that they were purchased in his name and there also receipts standing in his name.
35. In D.S.Lakshmaiah & another V/s.
L.Balasubramanyam & another (AIR 2003 SC 3800), the Hon'ble Supreme Court has held as follows:
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to 37 prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
(Underlining by me)
36. In the light of the aforesaid discussion, point No.1 as to whether the plaintiff has proved that there was joint family nucleus out of which joint family properties were purchased in the instant case has to be considered in the light of the evidence on record. The plaintiff has deposed as PW1 and has stated that lands bearing Sy.Nos.8/2, 10/1, 44/5 and 35/1 and the dwelling house belonged to his grand-father and that Sy.Nos.44/5 and 35/1 are item No.1 of 'A' schedule property. That in the year 1986 (prior to the filing of the suit) Sy.Nos.8/2 and 10/1 were sold by plaintiff and defendant Nos.1 to 3 to NTI Employees Co-operative Housing Society after executing a General Power of Attorney in favour of the society. The amount received from the said sale was utilized for repair of suit item No.2 and for construction of a house on item No.4 of 'A' schedule property. In the cross-examination, 38 however, he has stated that when Sy.Nos.8/2 and 10/1 were sold through a power of attorney and he received Rs.81,000/- from NTI Society in the year 1993 and also a site carved out of the said lands for a sum of Rs.53,000/-. But the other two items continued as ancestral properties in possession of the joint family. He has also stated that in the year 1962, the family was having, apart from the salary of the father, income from agricultural lands. From the said lands two bags each of paddy and ragi were received, which were sufficient for the use of the family. Some portion of the lands were cultivated by tenants. There were casurina plants also. That paper publication was issued in the year 1995 by the plaintiff. Subsequently, defendant Nos.1 and 2 have sold lands in Sy.Nos.44/5 and 35/1, which are item No.1 of 'A' schedule property.
37. As against this evidence, DW1 the mother of the plaintiff has admitted that item No.1 of 'A' schedule has been sold by separate sale deeds while admitting the 39 four items of ancestral joint family property. DW3 has also stated that Sy.Nos.8/2, 10/1, 44/5 and 35/1 of Kodigehalli Village are ancestral joint family properties. There is no contra evidence in this regard.
38. From the said evidence, it has been established that the ancestral joint family properties were in the possession of the joint family namely since plaintiff's grand-father's time. Sy.Nos.44/5 and 35/1 totally measuring 39 guntas which are item No.1 of 'A' Schedule Property were sold during the pendency of the suit and two other Sy.No. namely Sy.No.10/1 & 8/2 at Kodigehalli were sold prior to the filing of the suit.
39. Thus, in the instant case, the joint family of the plaintiff and defendants 1 to 4 did possess ancestral joint family properties. Infact, the aforesaid four items of agricultural lands are admitted to be ancestral joint family properties by the parties out of which right from the time of plaintiff's grand father the family derived not only agricultural 40 income but also food grains sufficient for the family. This was so, even in the year 1962. Therefore, in the instant case, the nucleus of joint family property has been established and further the joint family property is also ancestral property. Point No.1 is thus answered in favour of the plaintiff-appellant.
Re: Point No.2
40. As stated above, there is no dispute that two items of land namely item No.1 of 'A' schedule property are ancestral joint family properties. In fact, there was an order of injunction issued by the trial court restraining the defendants from alienating the said items. However, during the pendency of the suit, the suit items have admittedly been alienated though documents of sale have not been produced by the defendants. Even in the absence of there being any documentary evidence, the trial court has held that since the said items have been alienated by the defendants during the pendency of the suit, they are not available for partition. The trial court in 41 the instant case has failed to apply the principle of lis pendens as enunciated in Section 52 of the Transfer of property Act as the said item was sold without the authority of the Court.
41. The Doctrine of lis pendens is intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of the Court in which the dispute of rights or interest in immovable property is pending by private dealings that may remove the subject matter of litigation from the ambit of the power of the Court to decide a pending dispute or which may frustrate its decree vide Dwaraka Prasad Singh & Others v. Harikant Prasad Singh & Others [AIR 1973 SC 655]. The effect of the doctrine is not to annul the conveyance but only to make it subservient to the rights of the parties to the litigation. The plea of the lis pendens can be allowed even though the point is not taken in the pleadings or raised as an issue. Such a plea can also be made applicable where the 42 transaction is by a registered deed while the suit is on an unregistered instrument.
42. In Sanjay Verma V/s. Manik Roy & Others (2006) 13 SCC 608) it has been held that a transferee pendete lite is bound by the decree just as much as he was a party to the suit. Since principles of lis pendens embodied in Section 52 of the T.P. Act is a principle of public policy, no question of good faith or bona fides arises. The principle underlying Section 52 of the said Act is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation.
43. Hence, the trial court was not right in holding that the said items were not available for partition and thereby dismissing the suit vis-à-vis item No.1 of schedule 'A' property, particularly when an order of injunction restraining alienation was operating at the time of sale of the said items. By applying the principles of lis pendens and in view of the plaintiff not being a party to the alienation made by the defendants, the trial court ought to 43 have held that item No.1 of schedule 'A' property was available for partition rather than relying on an admission made by plaintiff's counsel. Issue No.2 is thus answered in favour of the plaintiff-appellant.
Re: Point Nos. 3 and 4
44. Item No.2 of "A" Schedule property was originally a site purchased in the name of defendant No.1 by a registered sale deed dated 01/09/1948 as per Ex.P8. There is considerable controversy with regard to this suit schedule item, though no appeal has been filed by the defendants on this aspect of the matter. But since elaborate arguments have been addressed by learned counsel, the said points have been formulated having regard to point No.4. It is the case of the plaintiff that the said item is joint family property. On the other hand, the defendants have stated that it is the self-acquired property of defendant No.1. The said document states that a sum of Rs.12,000/- was paid by Sri. K.G.Gopala Rao, husband of defendant No.1 at the time of registration of sale. 44 Having regard to the documentary evidence on the one hand and the assertions made by the defendants on the other hand, the point that needs to be determined is as to whether item No.2 of schedule 'A' is the separate property of defendant No.1 or the joint family property of the family as contended by the plaintiff. The trial court particularly has held that it is joint family property. As stated above, though no appeal has been filed by the defendants on this aspect, elaborate arguments have been advanced by their counsel.
45. P.W.1 has stated that his father acquired certain properties out of his own earnings from Binny Mills House Building Co-operative Society. But in 1948, Item No.2 which was a site in Kodandarampura was acquired in the name of his mother, apprehending that his aunt would claim a share in the property if it was purchased in his own name. The said property was purchased as a site and subsequently a house was constructed thereon. In the said house, P.W.1 has been residing. That, when 45 Sy.No.8/1 and 10/2 of Kodihalli village was sold in the year 1986 to NTI Employees' Co-operative Housing Society, the amounts raised from the said sale was given to the mother
- defendant No.1, to be utilized for the repair of the house built on Item No.2 of "A" Schedule property. P.W.1 has also stated that when Item No.2 of "A" Schedule property was purchased in the year 1948 in the name of his mother, at that time, his father was having salary income and was getting food grains from agricultural lands. But it has been denied that the said property belongs to his mother. It is also stated that the parents of his mother were not well to do and that no monies flowed from her paternal side for the purchase of the said item. It is also denied that the construction put on the said site by the mother was with the help of her parents. The construction was completed in the year 1962. At that time, neither P.W.1 nor his elder brother were in service and they were not earning and therefore, had not contributed for improvement of the property. That a sum of Rs.1.00 lakh (Rupees one lakh only) was invested for the construction of a building on 46 Item No.2 of "A" Schedule property in the year 1962. According to P.W.1 at that time (1962), apart from the salary income, the family was getting income from the agricultural lands, though no documents are shown that there was agricultural income from the lands as they were cultivated by tenants. Though P.W.1 has stated that Item No.2 was purchased from joint family funds, there is no direct evidence to that effect.
46. P.W.2 has stated that Item No.2 of "A"
Schedule property is the property of Sri K.G.Gopala Rao - father of P.W.1 and the said property was purchased out of agricultural income and from the salary earned by Sri K.G.Gopala Rao. He has stated that Sri K.G.Gopala Rao's wife told him that the property was purchased in her name and by 1970, a house was constructed on the said property. He has denied that Item No.2 is the self acquired property of the first defendant. P.W.2 in his cross- examination has also stated that the father of the plaintiff during his l ifetime was cultivating Item No.1 of the suit 47 schedule properties with the help of servants and after his death, the property was in possession and enjoyment of the family members. In Item No.2 of "A" Schedule property, a building was constructed by investing a sum of Rs.One lakh. That joint family property of the family included lands, income from the agricultural lands and salary of the plaintiff and defendant No.2. That there were tenants in the Item No.2 of the "A" Schedule property, who were paying rents to the first defendant.
47. First defendant has adduced evidence as D.W.1. She has asserted that Item No.2 of plaint "A" Schedule property is her self acquired property, which was purchased in the year 1948 out of her own funds and neither her husband nor her sons contributed towards the purchase of the property or for the construction thereon. It is stated that she was earning income by selling clothes, plantain leaves, incense sticks etc, and she was receiving funds from her father's house. That when her parents died, she was five years old, she was managing her 48 parental properties along with her uncle and aunt. At that time when the suit Item No.2 was purchased (1948), she was having monthly income of Rs.400/- to Rs.500/-. That she constructed the house on the said suit item. That her husband who was employed in Binny Mills but was irregular in his work as he was suffering from ailments at the time of construction. She has also denied that her husband put up the construction on Item No.2 out of his own funds. But she has however not been able to produce any corroborative material with regard to her cloth business or with regard to supply of incense sticks.
48. D.W.2, who is said to be the aunt of D.W.1 (defendant No.1) has stated that Item No.2 of "A" Schedule property was purchased by defendant No.1 and that she had helped her in putting up construction and also at the time of purchase of the site. She has admitted that at that time of purchase of the site, defendant No.1's husband was employed at Binny Mills, but he had no funds to purchase the site as he was having a meager salary and 49 that she helped D.W.1 to purchase the site and to construct the building as at that time, the children were very young. However, in the cross-examination, she has admitted that she had given Rs.300/- only to Defendant No.1 to purchase Item No.2 of Schedule "A". She has also stated that she is residing with her foster son Ramakrishna, who is the younger brother of D.W.1.
49. D.W.3 has also stated that Item No.2 was not purchased out of the earnings of his father, but it was purchased by his mother long prior to his birth. D.W.4 has also stated that D.W.1 was doing business in cloth, selling plantain leaves and incense sticks and she had her own income out of which, she purchased Item No.2 of "A" Schedule and put up construction thereon. That she was assisted by D.W.2 financially. That defendant No.1 (D.W.1) executed a Will and bequeathed a share in the said property to her. According to D.W.4 defendant No.1 had every right to make the Will in respect of Item No.2 of Schedule "A" as the said property was her self-acquired 50 property. She has also stated that her mother was doing business in vegetables from the house itself but no corroborative evidence has been produced in support of the same and neither any income earned from the said business has been stated. When the property was purchased in the year 1948, D.W.4 was aged two years and plaintiff was not yet born. She has also stated that her aunt Lingamma (D.W.2) had helped to put up the construction on Item No.2 but the cost of construction is not known or as to how much money was given by Lingamma to defendant No.1 to put up the construction. D.W.4 has however admitted that the father has purchased Item No.2 in the name of the mother in the year 1948.
50. On a conspectus consideration of the oral and documentary evidence, it becomes clear that Item No.2 was purchased in the year 1948 in the name of defendant No.1 and the sale consideration was Rs.12,000/-. Ex.P.8 states that the husband of defendant No.1 Sri K.G.Gopala 51 Rao paid the sale consideration. But it is asserted by defendant No.1 that the said item was purchased out of her self-earnings; though several statements have been made on oath regarding the earnings of defendant No.1, there is no corroborative documentary evidence in that regard. The oral evidence has sought to improve the pleadings of defendant Nos.1 and 3. Also, in 1948 when the property was purchased, defendant No.1 was only 20 years of age. Plaintiff was not yet born. She and her husband had migrated to Bangalore only in the previous year i.e., in 1947 on account of the employment of plaintiff's father in Binny Mills. It is hard to believe that she would have been financially capable of buying Item No.2 of "A" Schedule property for a sum of Rs.12,000/-, when, the parents of plaintiff had settled in Bangalore only in the year 1947, and in the year 1948 the property was purchased. How defendant No.1 could have saved Rs.12,000/- to purchase the said property is not forthcoming even if for a moment it is believed that she had a cloth and other business. That apart, evidence of 52 D.W.2 Lingamma, who is said to have financed the first defendant in the purchase of the suit item clinches the issue. She has stated that a sum of Rs.300/- only was paid for the purchase of the site whereas, the total sale consideration was Rs.12,000/-. Though she has stated that she had also contributed to the construction put up thereon, there is no corroborative evidence in that regard. In 1948, when the suit item was purchased, the father of the plaintiff who is also the husband of defendant No.1 was working in Binny Mills, which fact has been established. In the absence of there being any concrete evidence with regard to her independent source of income, defendant No.1 could not have purchased Item No.2 of "A" Schedule from her self earnings. The evidence of D.W.2 in no way assists Defendant No.1. That apart, when the property was purchased, defendant No.3 who has deposed as D.W.4 has stated that she was aged about two years at that time, the plaintiff was not yet born. Therefore, the stand of the defendant No.1 that suit Item No.2 was purchased out of her self earnings and with the financial support of 53 Lingamma, her aunt who has deposed as D.W.2 cannot be accepted in the absence of there being any concrete proof in that regard. Similarly the fact that Defendant No.1 had solely invested in the construction of a building on item No.2 of 'A' Schedule cannot be accepted.
51. On the other hand, the contention of the plaintiff that the suit item is a joint family acquisition is more probable in the face of there being ancestral joint family property which could have contributed to the purchase of the suit property. What emerges on a consideration of the totality of the evidence in this regard is the fact that Sri K.G.Gopala Rao, the father of the plaintiff and husband of defendant No.1 was working in Binny Mills. He had joined service earlier and may have also been partly financed by his father who was then looking after the agricultural lands on whose income the joint family was being sustained. He was having his self earnings also. Ex.P.8 also states that he paid the sale consideration of Rs.12,000/-. A sum of Rs.12,000/- could 54 not have been saved only out of the earnings of the father of plaintiff as it was only in 1947 that he had shifted to Bangalore for work having regard to the meagre salary he was getting. The fact that funds from agricultural income from ancestral joint family property was also partly utilized towards the purchase of the said item cannot be ruled out. Therefore, the suit item was purchased by him in the name of his wife i.e., defendant No.1 and not in his name as the same could have been claimed by defendant No.4 as joint family property. Defendant No.1 is, thus only a name lender even though all documents with regard to putting up of construction such as licence etc, have been in the name of defendant No.1 i.e., on account of the fact that the property stood in the name of defendant. The evidence on record is not sufficient to hold that defendant on her own or with the help of her aunt Lingamma purchased the said suit item and, put up construction thereon. Hence, it is held that the contribution for the purchase of Item No.2 and also the construction put up on the suit item flowed from the father of the plaintiff and 55 husband of defendant No.1 and also from the ancestral property which yielded agricultural income.
52. Though, defendant No.1 is only a name lender, the question would arise as to whether the property having been purchased in her name would entitle her to be the owner thereof. In this regard, the relevant provisions of the Benami Transactions (Prohibition) Act, 1988, would have to be considered. Having regard to proviso to clause
(b) of sub-section 3 of Section 4 of the said Act, it is held that the said property does not belong to defendant No.1 but is a joint family property.
53. It is reiterated that the existence of ancestral property in the form of agricultural lands has been admitted by the parties. PWs.1 and 2 have spoken about agricultural income. Therefore, the existence of the nucleus of the joint family property has been established, which in the instant case was ancestral. It is from the earnings of the agricultural lands and also from the savings of the father of the plaintiff that the said item has been 56 purchased. It is therefore joint family property. The construction put up thereon is also from the joint family income and from the salary income of the father of the Plaintiff. The contention taken by Defendant No.1 that it is her self acquired property is wholly false and baseless in the absence of any evidence in that regard. Accordingly, issue No.3 is answered in favour of the appellant in RFA.No.1300/2008 and against the appellant in RFA.No.963/2008, in which arguments regarding this item has also been addressed without assailing the decree on this aspect of the matter.
54. Then, the next question would arise as to whether defendant No.1 had the competency to make a Will and whether in the absence of the original Will being proved before the trial Court, the application filed before this Court seeking permission to produce the certified copy way of additional evidence has to be allowed. The certified copy of the registered Will is filed along with the application and the Will is dated 4/11/1999. The testator 57 i.e., defendant No.1 died during the pendency of the suit on 15/05/2000. Subsequent to her death, defendants 2 and 3 did not produce before trial Court the Original Will of their mother - defendant No.1. It has been stated that the original Will was placed in a cupboard which was in the 2nd floor of item No.2 of 'A' Schedule and an attempt was made to produce the same but it was unsuccessful. Thus, defendants 2 and 3 did not produce the original Will of defendant No.1 and in the absence of the production of the original Will no attempt was made to produce certified copy of the registered Will before the trial Court as secondary evidence, though the same was within their knowledge.
55. Of course, the trial Court proceeded to hold that Item 2 of "A" Schedule was not the property of defendant No.1 and it was the joint family property in which event the Will of defendant No.1 would have no validity in the eye of law. Before this Court also, the defendants have failed to establish that the said suit item 58 was the self acquired property of defendant No.1. Even having regard to the fact that the property was purchased in the name of defendant No.1 by her husband Sri K.G.Gopala Rao, the said item would not become the property of defendant No.1; is she only a name lender. It is held that the intention of Sri K.G.Gopala Rao was not to purchase Item No.2 of "A" Schedule in the name of his wife in order to confer title in the said property on defendant No.1. Only if defendant No.1 had been successful in establishing that it was her self acquired property, then she was competent to bequeath the said property to persons of her choice. Also Section 14 of Hindu Succession Act, 1956, relied upon by counsel for defendant No.3 does not apply to the instant case as it is not a case of limited estate of defendant No.1 being enlarged by virtue of Section 14 of the said Act. In this case self acquisition of item No.2 by defendant No.1 has not been established by her; nor is it a case of a limited right being granted to defendant No.1 vis-à-vis the said 59 property, AIR 2005 SC 2509 relied upon by respondents counsel has no application to the present case.
56. In AIR 2009 SC 2509, the concept of enlargement of estate of female Hindu under Section 14 of the Hindu Succession Act has been discussed. The said decision would not apply having regard to the facts to the present case. In the instant case, defendant No.1 has asserted that she had purchased item No.2 of schedule 'A' property out of her own earnings. Having regard to the evidence on record, it has been held above that the said item is also joint family property. Therefore, this decision is of no assistance to defendant No.3.
57. Accordingly, Point No.3 is answered in favour of plaintiff-appellant. Therefore, Item No.2 of "A" Schedule which is held to be the joint family property of defendant No.1 has to be partitioned.
58. If that is so, the next issue regarding, the application filed under Order XLI Rule 27 of the CPC for 60 production of the certified copy of the Will has to be considered only for academic purpose, as it is already held that Defendant No.1 was not the sole owner of item No.2 of 'A' Schedule property. Therefore she was not competent to bequeath the same. Assuming for a moment that the said item was the self acquired property of Defendant No.1, the question as to whether additional evidence filed along with an application filed under order XLI Rule 27 CPC has to be considered. As already noted, on the death of defendant No.1 during the pendency of the suit, her Legal Representatives, who relied on the Will made by defendant No.1 did not produce the original Will nor the certified copy of the registered Will by way of secondary evidence before the trial Court. Even before this Court it is not defendants 2 and 3 who have filed the application seeking permission to produce the original Will but it is the heirs of defendant No.2, who died during the pendency of his appeal, who have sought permission to produce the Will. In fact on the death of Defendant No.1, her legatees under the will were also not brought on record. Her natural heirs who were already on record pursued the suit on her behalf. As already stated, the 61 appeal by defendant No.2 does not pertain to this item of suit property. But additional evidence is sought to be produced by the heirs of defendant No.2.
59. In order to produce additional evidence at the appellate stage, the conditions mentioned in Order XLI Rule 27 CPC would have to be complied with. Rule 27 envisages the circumstances which enables a person to produce additional evidence at the appellate stage. Having regard to Order XLI Rule 27 CPC, I am of the view that the appellant or his Legal Representatives in RFA.963/2008 have failed to make out any ground for production of the Will at the appellate stage. In fact, no sound and valid reasons for production of the certified copy of Will at this stage have been made out.
60. In fact, in AIR 1957 SC 912 and in N.Kamalam (Dead) & another V/s. Ayyasamy & another (2001) 7 SCC 503), the Supreme Court has held that the provisions of Order XLI Rule 27 of CPC is not designed to help parties patch up weak points and to make up for omissions made earlier. Even inadvertence or lack of proper legal advice is not a ground to admit additional 62 evidence. Also it would not constitute substantial cause contemplated in Rule 27 of Order XLI of the CPC vide AIR 2008 SC 56.
61. Therefore, the application is dismissed and the certified copy of the registered Will said to have been made by defendant No.1 cannot be taken on record as additional evidence. That apart, it is reiterated that when it is held that Item No.2 of "A" Schedule property was not the separate property of defendant No.1 but is joint family property, defendant No.1 had no competency to bequeath the said property. For this reason also, no purpose is to be served in considering the certified copy of the Will of Defendant No.1, as it has no bearing on the rights of the parties. The application for additional evidence is dismissed. Accordingly, Point No.4 is answered.
Re: Point No.5
62. As far as Item No.3 of Schedule "A" is concerned, there is no dispute that the said property which was allotted by Binny Mills Employees House Building Co- operative Society to Sri K.G.Gopala Rao, vide Ex.P19 dated 11/7/1962 was his separate property at the time of its 63 allotment. After the death of Sri K.G.Gopala Rao, the said item was mutated in the name of his widow - defendant No.1 but the plaintiff and the L.Rs of defendant No.2 (together) and defendant No.3 would have a share in the said item. But the construction and repairs on the said property is jointly made by the family of plaintiff and defendant Nos.1 and 2 out of joint family funds such as rents received from item No.2 of 'A' Schedule Property, as well as from the separate earnings of plaintiff's father. Though the allotment of the site is in the name of the father of the plaintiff, the same has not been treated by him as his separate property but has been blended with other joint family properties. A building was constructed thereon and a portion of it was also let out. Thus, it becomes joint family property available for partition. Thus, Point No.5 is answered.
Re: Point No.6
63. This Point pertains to Item No.4 of Schedule "A". It is not in dispute that the said item was purchased in the name of defendant No.2 the eldest son. This item also was originally allotted by the Binny Mills Employees 64 House Building Co-operative Society to the vendor of defendant No.4 from whom the property was purchased in the name of defendant No.4. The said item was a vacant site which was purchased by a registered sale deed dated 16/1/1978 for a sum of Rs.8,000/- Ex-P9. In the written statement, defendant No.1 has stated that it is not within her knowledge as to whether Item No.4 was purchased out of joint family funds. In this regard, the evidence of the plaintiff who has deposed as P.W.1 is that it is a joint family acquisition and the property was purchased in the name of the second defendant who was the eldest son who was working as a Dental Technician at the time of its purchase and the said property was not purchased out of the earnings of the second defendant and nor was the construction made by only second defendant by raising loan. P.W.2 has also stated that Item No.4 of Schedule "A" was purchased in the name of second defendant from and out of earnings of Sri K.G.Gopala Rao and his sons. A house and four shops were constructed out of the joint family funds. It is not the self acquired property of second defendant. However, D.W.1 in her evidence has stated that Item No.4 of "A" Schedule was not purchased out of 65 joint family funds and that the said property belongs to second defendant, which fact is not averred in her written statement. Significantly, the second defendant did not file any separate written statement but adopted the written statement filed by defendant No.1. Thus there is no pleading that this item of property is the separate property of Defendant No.2. He has however deposed as D.W.3 and has stated that Item No.4 of "A" Schedule was purchased by him in the year 1978 and that a construction was put up by him by spending Rs.50,000/- and that the said property belongs to him. He has also denied that the construction on Item 4 of "A" Schedule property was made using the sale consideration of the land bearing Sy.No.8/2. He has stated that in the year 1969 he joined service as a Dental Technician on a salary of Rs.450/- p.m. and that in 1978 his salary was Rs.1,000/- p.m. and in the year 1978-79 a construction was put up on Item No.4 having a residential portion and four shops.
64. On a consideration of the said evidence, what becomes clear is the fact that Item No.4 of "A" Schedule property was purchased in the name of second defendant the eldest son but there is no documentary evidence in 66 support of the stand taken by the defendants that the sale consideration of Rs.8,000/- was paid by the second defendant alone. If the second defendant had purchased the said property out of his savings or if financial assistance had been taken from any institution or individual, then evidence to that effect would have been let in. When the second defendant has stated that he was employed as a Dental Technician since the year 1969 and he purchased the property in the year 1978, in the absence of there being any other source of income, defendant No.2 would have purchased the said property either out of his savings or by raising a loan. But in the absence of any such evidence, what becomes relevant is the preponderance of probability that the said item was also purchased out of joint family funds, particularly when rents were being received from item No.2 of 'A' schedule property.
65. In this context, the utilization of funds jointly by the members of the joint family for improvement of properties also becomes relevant. The fact that rents were being received from various tenants in item No.2 of 'A' schedule property cannot be lost sight of. Also, one 67 cannot ignore the evidence of P.W.1 that in the year 1986 two items of land namely Sy.8/1 and 10/2 of Kodigehalli village was sold by the family to NTI Employees' House Building Co-operative Society and the amount was utilized for repair of the house on Item No.2 and according to P.W.1 even construction of the house on Item No.4 also was from the said funds. Infact, construction on Item No.2 was completed in the year 1962 during which period, the plaintiff or defendant No.2 were not yet in service. It has also come in evidence that defendant No.1 had raised a loan of Rs.60,000/- in the year 1980 and prior to that a sum of Rs.60,000/- in the year 1975, from Pragathi Co-operative Bank and the said loans were jointly repaid. According to P.W.1, his brother i.e., second defendant has constructed a house on Item No.3 in the year 1975 after obtaining loan from the bank. It has also come in evidence that Item No.2 was rented out to tenants and rents were being received initially by defendant No.1 and later by defendant No.2. Therefore, it is held that Item No.4 of Schedule "A" also is the joint family property of the parties and not the separate property of defendant No.2. 68 Accordingly, point No.6 is answered and R.F.A. No.963/2008 is dismissed.
66. During the course of arguments before the trial Court, defendant No.2 had filed four documents. The first being a mortgage deed dated 26/3/1998 executed by defendant No.2 in favour of Pragathi Co-operative Bank Limited, wherein Item No.4 of the suit schedule property was mortgaged. The second document is a photocopy of the acknowledgement for having received a sum of Rs.1,35,000/- from one Rajanna by the plaintiff being the sale proceeds pertaining to Item No.1 of the suit schedule property. The third is the photocopy of the sale deed with regard to Item No.4 of Schedule "A" property, the original being marked as Ex.P.9. The fourth document is a photocopy of Tax Paid Receipt and Certificate dated 26/06/2008 pertaining to Item No.4 of the Schedule "A" property.
67. These documents could not have been considered by the trial Court at the stage of arguments without the same being marked in evidence particularly, the second document, which is a photocopy of the 69 acknowledgement for having received a sum of Rs.1,30,000/- from one Rajanna by the plaintiff, towards the proceeds pertaining to Item No.1 of the suit property, which was sold during the year 1998. On the basis of the said document it was held that Item No.1 of the suit schedule property did not exist for partition, which is incorrect.
Re: Point No.8
68. As far as 'B' schedule property is concerned, the trial court has dismissed the suit. Though an elaborate list of movables are mentioned in 'B' schedule properties, there is no concrete evidence in that regard. Further no inventory at the time of filing of the suit has been made with regard to the existence of the movables mentioned in schedule 'B'. In the absence of any oral and documentary evidence, the trial court was right in holding that the existence of the 'B' schedule properties was not proved. The dismissal of the suit in that regard is therefore, just and proper. Accordingly, Point No.8 is answered. 70
Re: Point No.9
69. As far as the mesne profits are concerned, the trial court has also dismissed the suit with regard to mesne profit sought by the plaintiff on the premise that the plaintiff is in joint possession of the plaint schedule properties and the question of awarding mesne profits would not arise. The said reasoning is erroneous and contrary to the settled position in law. It is only when the plaintiff is entitled to a share in the properties and has been deprived of the enjoyment of the properties by way of rents or proceeds of the sale of crops grown on lands etc., that mesne profits could be claimed. It is not necessary that plaintiff must be dispossessed in order to claim mesne profits. In the instant case, it has been held that the plaintiff has a share in all the suit schedule items of 'A' schedule property. Therefore, the plaintiff is entitled to accounts and share of rents from the date of the suit out of the rents received from the tenants. A direction would, therefore, ensue to compute the same at the time of final decree proceedings.
71
70. In Krishnabai & others V/s. Kalawati & others (1977 (2) KLJ 4), it has been held that when a suit for partition is brought by one tenant-in-common against other tenants-in-common, then each tenant-in- common to render account of rents and profits which has realized and a proper direction should ensue to all parties in possession and enjoyment of the properties to render account of rents and profits realized by them. Accordingly, the said issue is answered.
Re: Point No.7
71. The plaintiff is, therefore, entitled to a share in item Nos.1 to 4 of schedule 'A' properties as they are held to be joint family properties. In fact, item No.1 of schedule 'A' is ancestral joint family property. As far as determination of the shares are concerned, it was contended by Defendant No.3 that she is entitled to a share equal to that of the plaintiff in view of the amendment made to Section 6 of the Hindu Succession Act. The trial court has granted 1/3rd share to the plaintiff by effecting a partition between the plaintiff and defendant No.2 and defendant No.3 since defendant Nos.1 and 4 died 72 during the pendency of the suit. The contention that defendant No.3 is entitled to a share equal to that of the plaintiff has been opposed by the plaintiff on the premise that defendant No.3 was born prior to 1956 and therefore, cannot claim to be a coparcener having regard to the decision of the Division Bench of this Court in the case of Pushpa N.V. V/s. V. Padma & others (2010 (3) KLJ
549). To counter the same, a decision of the Supreme Court in Ganduri Koteshwaramma & another V/s. Chakiri Yanadi & another (2011)9 SCC 788) has been relied upon. It is also brought to my notice that the judgment in Pushpa's case has been stayed by the Hon'ble Supreme Court. The trial court has allotted 1/3rd share in the joint family properties to the plaintiff by making a partition of the schedule properties available for partition based on the premise that the plaintiff and defendant Nos.2 and 3 would each have an equal share and accordingly, 1/3rd share has been allotted to the plaintiff. If the amended Section 6 of the Act is to apply, then in my view defendant No.3 would have a share equal to that of the plaintiff in which event the plaintiff's share would be 1/3rd in terms of sub-section (3) of Section 6 of the Act 73 irrespective of the year in which she was born. Thus point No.7 is accordingly answered against the appellant in RFA.No.1300/2008 as the unamended Section 6 of the said Act make a distinction between daughters born prior to 1956 and those born subsequent to 1956, when the Act was enforced. If the object of the amendment is to enhance the share of a daughter in the joint family properties on the date of a Mithakshara male Hindu, then the same cannot be demanded to his daughter on the basis of her year of birth. Therefore, the trial Court was right in appreciating an equal share to plaintiff, defendant Nos. 2 and 3 in the joint family property.
72. In the result, RFA.No.1300/2008 is allowed in part, while RFA.No.963/2008 is dismissed. Plaintiff is entitled to 1/3rd share in all items of 'A' Schedule Property. Similarly LR's of defendant No.2 (together) and defendant No.3 are each entitled to 1/3rd share in all items of 'A' Schedule Property. A direction is issued to compute and pay the future mesne profits claimed by the plaintiff as his share in the final decree proceedings. The suit filed by plaintiff with regard to 'B' Schedule Property has rightly been dismissed by the trial court. The application filed by 74 the appellants in R.F.A.No.963/2008 under order XLI Rule 27 is dismissed as also the appeal. Having regard to the relationship between the parties, they shall bear their respective costs.
Sd/-
JUDGE.
*mvs/S*