Karnataka High Court
Smt Gowramma vs Sri Rangappa on 7 January, 2015
Author: R.B Budihal
Bench: R.B Budihal
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2015
BEFORE
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
REGULAR SECOND APPEAL NO.3090/2007(PAR)
BETWEEN
1. Smt Gowramma
W/o Shivapooje Basappa
Since deceased by her LRs
(a) Sri Nanjundaiah
Aged 60 years
S/o Shivapooje Basappa
(b) Sri Shankaraiah
Aged 54 years
S/o Shivapooje Basappa
(c) Sri Lokanatha,
Aged 52 years
S/o Shivapooje Basappa
(a) to (c) are residing at
Nagavedi Village
Kanakatte Hobli
Arasikere Taluk.
(d) Smt Siddaramakka
Aged 58 years
W/o Ganganna
R/o Naduvanahalli Village
Handanakere Hobli
2
Chikkanayakanahalli Taluk
Tumkur-572 214.
(e) Smt Siddamma
Aged 56 years
W/o Shankarappa
R/o Guddadha Shankaranahalli Village
Kanakatte Hobli
Arasikere Taluk-573 103.
(f) Smt Gangamma
Aged 50 years
W/o Shanthappa
R/o Near Muddaranganahalli
Mallenahalli Village
Kasaba Hobli
Arasikere Taluk-573 103.
(g) Smt Chennabasamma
Aged 48 years
W/o Renukappa
R/o Mallenahalli
Kanakatte Hobli
Arasikere Taluk-573 103.
2. Sri Lingaraju (also known as Ningaraju)
Aged about 45 years
S/o Shivapooje Basappa
Nagavedi Village
Kanakatte Hobli
Arasikere Taluk-573 103. ...APPELLANTS
(By Sri P A Kulkarni, Adv.)
AND
Sri Rangappa
Aged 70 years
S/o Shivapooje Basappa
Nagavedi Village
3
Kanakatte Hobli
Arasikere Taluk-573 103. ...RESPONDENT
(By Sri A V Gangadharappa, Adv.)
This R.S.A. is filed under Section 100 of CPC against
the Judgment and Decree dated 1.8.2007 passed in R.A.
No.62/2003 on the file of the Civil Judge (Sr. Dn.) and Addl.
CJM, Arsikere, dismissing the appeal and confirming the
Judgment and Decree dated 30.06.2003 passed in
O.S.No.235/99 on the file of the Prl. Civil Judge (Jr. Dn.),
Arsikere.
This RSA having been heard and reserved for orders,
coming on for pronouncement of judgment, this day, the
Court delivered the following:
JUDGMENT
This appeal is preferred being aggrieved by judgment and decree dated 1.8.2007 passed by the Civil Judge (Sr. Dn.) and Additional CJM, Arasikere in R.A. No.62/2003 dismissing the appeal and confirming judgment and decree dated 30.6.2003 passed by the Principal Civil Judge (Jr. Dn.) at Arasikere in O.S.No.235/1999.
2. Appellant Nos. 1(a) to 1(g) are the legal representatives of plaintiff No.1 and appellant No.2 was 4 plaintiff No.2. The respondent herein was the defendant. The case of the parties before the trial court was that the 1st plaintiff filed the aforesaid suit for declaration that she is having half share in the suit schedule properties and also for partition and separate possession of the suit schedule properties and also for mesne profits.
3. It is the case of the Appellants-plaintiffs that suit schedule property originally belonged to one Chennabasappa son of Nanjappa of Byrapur village. The said Chennabasappa sold the suit schedule property under registered sale deed dated 26.1.1956 in favour of 1st plaintiff and the defendant. From the date of purchase, the 1st plaintiff and defendant were in joint possession and enjoyment of the suit schedule property. The defendant is the son of Shivapooje Basappa through another wife. The 1st plaintiff and defendant had got equal share in the suit schedule property and no partition was effected between them. Defendant without the knowledge of the 1st plaintiff got changed the katha in his name alone in respect of suit schedule property and one month earlier to the 5 filing of the suit, the defendant denied the 1st plaintiff's right over the property. When the 1st plaintiff verified the RTC, she came to know about the change of katha in respect of suit schedule property in favour of defendant alone. When the 1st plaintiff enquired with defendant, he gave evasive reply. Hence, plaintiffs filed the aforesaid suit. The defendant denied the plaint allegations and contended that originally schedule property belonged to one Chennabasappa, who sold the said property in favour of the 1st plaintiff and himself through a registered sale deed dated 26.1.1956. He denied that the schedule property was jointly enjoyed by himself and the 1st plaintiff. The property was not purchased by the 2nd plaintiff and hence, the 2nd plaintiff was not a necessary party to the suit. The suit was bad for mis-joinder of party. It was contended that the defendant was first wife's son of Shivapooje Basappa. Through the 1st plaintiff, Shivapooje Basappa had got four male and four female children namely, Nanjundappa, Shankarappa, Lokanathappa, Lingaraju, Sidramakka, Siddamma, Gangamma and Channabasamma, who were all married. The plaint schedule properties were the 6 joint family properties of plaintiffs and defendant. It was further contended that at a partition held in the family, plaint schedule properties and survey Nos. 23/2 and 22/1 had been allotted to the share of defendant. Following the oral partition, 1st plaintiff had given statement before the revenue officer and katha of the properties were changed in favour of the defendant under MR No.7/1998-99. The other properties, which were in the family were also divided and fallen to the share of the 1st plaintiff. The names of the 1st plaintiff's children were also mutated and they were enjoying their respective shares independently. Hence, it cannot be said that the suit schedule properties were to be divided between the plaintiffs and defendant. It was also contended that after partition, defendant had invested huge sums of money and improved his land. The 1st plaintiff with ulterior motive and in collusion with her sons, filed the false suit. Suit schedule properties were not available for partition. There was no cause of action for the suit, it was time barred, and court fee paid by the plaintiffs was not correct and hence sought to dismiss the suit.
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4. On the basis of the above pleadings, the trial court framed the following issues:
1) Whether the plaintiff proves that the suit schedule properties are the joint family properties?
2) Whether the plaintiffs are entitled to ½ share in suit schedule property?
3) Whether the defendant proves that 2nd plaintiff being party is bad by mis-joinder?
4) Whether the defendant proves the contents of para No.3 of the written statement?
5) What order?
After considering the merits of the case, ultimately, the trial court dismissed the suit of the plaintiffs. Being aggrieved by the judgment and decree of the trial court, the plaintiffs preferred appeal in R.A NO.62/2003. The first appellate court had also dismissed the appeal with cost by confirming the judgment and decree of the trial court. Being aggrieved by the judgment and decrees passed by the courts below, the appellants-plaintiffs have preferred this regular second appeal on the grounds urged in the appeal memorandum. 8
5. While admitting the appeal, this Court has framed the following substantial questions of law:
1. Whether properties standing in the name of a female member of a Hindu Joint Family along with one of the coparceners can be treated as a joint family property as held by both the courts below?
2. Whether both the courts below have erred in treating the suit schedule properties as the joint family properties so as to uphold the contention of the defendant that these properties fell to his share in the oral partition, when admittedly these properties are jointly owned and possessed by plaintiff -
Gowramma and defendant - Rangappa in terms of the registered sale deed dated 26.1.1956 executed by the vendor of these properties in their favour?
3. Whether both the courts below are in error in accepting the case of the defendant that the suit schedule properties have fallen to his share in the oral partition on the basis of revenue records like Ex.D.1 and D.2?
6. Heard the arguments of the learned Counsel appearing for the appellants-plaintiffs and the arguments of the learned Counsel appearing for the respondent-defendant. 9
7. Learned Counsel for the appellants, during the course of his arguments, submitted that the decision relied upon by the trial court in its judgment is not applicable to the facts of the present case. The properties were purchased jointly by the 1st plaintiff and the defendant. Apart from that, the 1st plaintiff being the female member of the family has got every right to claim her half share in the suit schedule property and her right cannot be denied by the defendant. Hence, the learned counsel submitted that it is the limited question of law involved in the appeal and submitted to allow the appeal by setting aside the judgment and decrees passed by the courts below.
8. On the other hand, learned counsel for the respondent during the course of the arguments submitted that there was partition in the family. The other properties had been already allotted to the share of the 1st plaintiff and her sons and their names were also mutated as per the partition and hence, the plaintiffs cannot claim partition in the suit schedule property. He also submitted that when the 10 mutation was effected in the name of the defendant, the 1st plaintiff did not raise any objection. It is also submitted that both the courts below have rightly appreciated the materials, both oral and documentary, and hence, submitted to dismiss the appeal.
9. Perused the pleadings of both sides presented before the trial court, oral and documentary evidence adduced in the case, the judgment and decrees of the courts below and the decisions relied upon by learned Counsel for the respondent reported in AIR 1995 SC 1728 (Digambar Adhar Patil Vs. Devram Girdhar Patil (died) and Another), which was referred in the judgment of the trial court.
10. It is an admitted fact, according to both sides, that the suit schedule properties were purchased by plaintiff No.1 and the defendant under the registered sale deed dated 26.1.1956 and thereafter, their names were mutated to the suit schedule properties. Though it was the contention of the original plaintiff No.1 that she was having half share in the 11 suit schedule properties as she was the joint owner of the said properties along with the defendant, but the defendant had contended that already there was oral partition between plaintiff No.1 and himself in respect of the suit schedule properties and plaintiff No.1 gave statement before the competent revenue officer in that regard and accordingly, katha of the said properties were changed in his favour in M.R. No.7/1998-99. It was also contention of defendant that the other properties of the family, which were also divided, were fallen to the share of 1st plaintiff's children and their names were mutated following the partition deed in M.R. Nos.16/1991-92, 28/1991-92 and 97/1991-92. The trial court as well as the first appellate court, looking to the documents at Exs.D1 and D2, the mutation extracts, produced by the defendants, came to the conclusion that there was partition between the original plaintiff No.1 and defendant and the suit schedule properties were fallen to the share of the defendant.
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11. Regarding the alleged oral partition between plaintiff No.1 and the defendant, no independent witnesses were examined by the defendant and the only material is the mutation extract of the year 1998-99. Even though it is alleged that plaintiff No.1 gave statement to that effect before the revenue authorities, but the said statement was not produced before the court. Apart from that, both the courts below were of the opinion that the properties purchased by plaintiff No.1 and defendant under the registered sale deed in the year 1956 were part and parcel of the joint family property and as there was partition in the family in the year 1991-92 in respect of other family properties, the shares were given to the sons of plaintiff No.1. It is to be noted here that when the properties were purchased by plaintiff No.1 along with the defendant, to the extent of the half share, those properties became absolute properties of plaintiff No.1 and even the doctrine of blending is also not applicable to the properties of female member of the joint family. It is no doubt true that during the course of cross examination of P.W.1, she was testified as to what was her independent income at the time of 13 purchasing the property jointly with the defendant. It was also suggested that the family owned the other properties when the suit schedule properties were purchased jointly by plaintiff No.1 and the defendant. Therefore, both the courts inferred that the properties purchased under the registered sale deed of the year 1956 were also the joint family properties and upheld the oral partition between plaintiff No.1 and defendant. Even if it is presumed that the joint family by investing its funds has purchased a property in the name of female member of the family, such property becomes absolute property of the female member and the other members of the family have no right to ask such female member to put the property into common hatch-pot seeking partition in respect of the property between the members of the family. This legal aspect has been completely overlooked by both the courts below.
12. I have perused the decision relied upon by learned Counsel for the respondent which was also referred by the trial court at para 12 on page No.10 of its judgment. 14 Looking to the facts and circumstances of the said decision, the partition between the two brothers was an admitted fact and it was not in dispute. The appellants in the instant case have rightly raised the contention that the said decision is not made applicable to the facts and circumstances of the case on hand as plaintiff No.1 Gowramma had seriously disputed the factum of oral partition between herself and defendant. In her oral evidence also, she had denied the fact that she submitted written statement before the revenue authorities for entering the properties into the name of the defendant. Apart from that, in the reported decision referred above, the partition aspect was between the two brothers and not between the female members of the family. Therefore, in view of these facts and circumstances, the reported decision can not be made applicable to the facts of the case on hand. Therefore, both the courts below have wrongly relied upon the aforesaid decision and have wrongly dismissed the suit of the plaintiffs.
13. The defendant had, in the written statement, raised the specific contention that the suit of the plaintiff was 15 barred by the law of limitation and the valuation slip filed and court fee paid was also not correct. In spite of such contention raised in the written statement, regarding the legal aspect, the trial court had not framed any issues on those aspects. Even when the appeal was preferred before the first appellate court, it had also not considered these aspects and simply proceeded to endorse the views of the trial court, though there is power to the first appellate court as per Order LXI Rule 25 of CPC to frame appropriate issues arising out of the pleadings when such issues are not framed by the trial court. The said issues, on payment of court fee as well as the limitation aspects, also require recording of evidence of the parties. As per Order XIV of CPC, the object of framing issues, regarding the material facts ascertained by one party and its denial by the other party, is to bring to the notice of parties what they have to prove and what is the burden cast on them. The object of framing of such issues is to draw the attention of the parties about the burden of proof. In the absence of framing of such issues, in spite of taking the specific plea in the pleadings, the parties may not be serious about those 16 aspects while leading their evidence, as such issues were not framed by the court. In view of these infirmities in the judgment and decrees of the courts below, the matter requires to be remanded back to the trial court for fresh disposal.
14. Hence, the appeal is allowed. The judgment and decrees of the courts below are hereby set aside. The matter is remanded back to the trial court for fresh disposal. The trial court is directed to frame the necessary issues arising out of the pleadings of the parties and to give opportunity to both the sides to adduce evidence and then to dispose of the matter in accordance with law, without being influenced by the observations made by this court in the body of the judgment.
15. As the suit is of the year 1999, the trial court is directed to take up the matter on priority basis and dispose of the same as expeditiously as possible, but not later than six months from the date of receipt of records of the case.
Sd/-
JUDGE Cs/-