Karnataka High Court
Smt.Mangamma vs N Ramaiah on 17 March, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.989 OF 2009
CONNECTED WITH
REGULAR FIRST APPEAL No. 1023 OF 2009
IN R.F.A.No.989/2009
BETWEEN:
1. Smt. Mangamma,
Wife of Thimmarayulu,
Daughter of Uttanallappa,
Aged about years,
Dead by Legal Representatives
1a) Smt. Kanthamma,
Wife of Narayana Swamy,
Aged about 44 years,
1b) Smt. Suguna,
Wife of Narayana Swamy,
Aged about 42 years,
2
1c) Smt. Manjula,
Wife of Ramesh,
Aged about 39 years,
1d) Smt. Sharada,
Wife of Chandrappa,
Aged about 37 years,
1e) Smt. Shobha,
Wife of Prakash,
Aged about 35 years,
1f) Sri. Manjunath,
Son of Late Thimmarayappa,
Aged about 26 years,
All are residing at No.44,
B.D.A. Layout,
Lottegollahalli,
RMV Second Stage,
Bangalore 560 094.
2. Smt. Krishnamma,
Wife of Marisannappa,
Daughter of Uttanallappa,
Aged about years,
3. Sri. Muniraju,
Son of Uttanallappa,
Aged about years,
4. Sri. Nagaraj,
Son of Uttanallappa,
Aged about years,
3
5. Smt. Rathanamma,
Wife of Muniraju,
Daughter of Uttnallappa,
Aged about years,
6. Smt. Padmamma,
Wife of Narayanswamy,
Daughter of Uttnallappa,
Aged about years,
All are residents of
Lottegollahalli,
RMV II Stage,
Bangalore - 560 094.
...APPELLANTS
(By Shri. J.M. Rajanna Shetty, Advocate)
AND:
1. N. Ramaiah,
Son of Narasimhaiah,
Major,
No.418, 41st Cross,
Sadashivanagar,
Bangalore - 560 080.
2. Smt. Lakshmamma,
Wife of Muniswamappa,
Major,
3. Smt. Anuradha,
Daughter of Muniswamappa,
Major,
4
4. Smt. Parvathi,
Daughter of M. Narasimhaiah,
Major,
5. Sri. Munihanumaiah,
Son of M. Narasimahaiah,
Major,
6. Sarojamma,
Daughter of Hanumaiah,
All are residing at
Lottegollahalli,
R.M.V.II Stage,
Sanjayanagar Post,
Bangalore - 560 094.
7. Ramanjanappa,
Son of Late Muniswamappa,
Aged 31 years,
Residing at Lottegollahalli,
R.M.V.II Stage,
Sanjayanagar Post,
Bangalore - 560 094.
...RESPONDENTS
(By Shri. B.V. Raman, Advocate for Respondent No.1;
Shri. Ashok Haranahalli, Senior Advocate for
Shri. R. Subramanya, Advocate for Respondent Nos. 2 , 3 and 6;
Respondent Nos. 4, 5 and 7 are served)
****
5
This Regular First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, against the judgment and decree dated
30.06.2009 passed in O.S.No.7237/1996 on the file of the XXX
Additional City Civil Judge, Bangalore, dismissing the suit for
partition and separate possession.
IN R.F.A.No.1023/2009
BETWEEN:
1. Smt. Lakshmamma,
Wife of Sri. Muniswamappa,
2. Smt. Anuradha,
Daughter of Sri. Muniswamappa,
3. Smt. Sarojamma,
Daughter of Hanumaiah,
4. Sri. Ramanjanappa,
Son of Late Muniswamappa,
All are residents of Lottegollahalli,
RMV II Stage,
Sanjayanagara Post,
Bangalore - 560 094.
... APPELLANTS
(By Shri. Ashok Haranahalli, Senior Advocate for
Shri. Subramanya .R, Advocate)
6
AND:
1. Sri. Uttanallappa,
Son of Munihanumaiah,
Residing at Lottegollahalli,
Sanjayanagara Post,
Bangalore - 560 094,
Since deceased by
Legal Representatives
a) Smt. Chowdamma,
wife of Uttanallappa,
b) Smt. Mangamma,
wife of Thimmarayalu,
since deceased
Respondent No.1(c to g)
are treated as Legal Representatives
of Respondent No.1(a and b)
vide court order dated 21.1.2015.
c) Smt. Krishnamma,
Wife of Marisonnappa,
d) Sri. Muniraju,
e) Sri. Nagaraju,
f) Smt. Ratnamma,
Wife of Muniraju,
g) Smt. Padmamma,
Wife of Narayanaswamy,
7
All are residents of
Lottegollahalli,
RMV II Stage,
Bangalore - 560 094.
2. Sri. N. Ramaiah,
Son of Narasimhaiah,
No.418, 41st Cross,
Sadashivnagar,
Bangalore - 560 080.
3. Smt. Lakshmamma,
Daughter of Narasimhaiah,
4. Smt. Parvathi,
Daughter of M. Narasimhaiah,
5. Sri. Munihanumaiah,
Son of M.Narasimihaiah,
6. Sri. Hanumaiah,
Son of Subbanna,
Since deceased by
Legal Representative
Smt. Sarojamma,
Daughter of Hanumaiah,
All are resident of
Lottegollahalli,
RMV II Stage,
Sanjayanagar Post,
Bangalore - 560 094.
7. Sri. Ramanjinappa,
Son of Late Muniswamappa,
RMV II Stage,
8
Sanjayanagar Post,
Bangalore - 560 094.
[respondent no.7 deleted
By court order dated 21.1.2015]
...RESPONDENTS
(By Shri. J.M. Rajanna Shetty, Advocate for Respondent No.1(c, d,
e, f and g);
Shri. B.V. Raman, Advocate for Respondent No.2;
Shri. M.S.Chandrashekar Babu, Advocate for Respondent No.5;
Respondent Nos. 3, 4 and 6 served;
Respondent No.7 deleted vide court order dated 21.1.2015;
Vide order dated 21.1.2015, respondent No.1(c to g) are treated as
Legal Representatives of deceased Respondent No.1(a and b) )
*****
This Regular First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, against the judgment and decree dated
30.06.2009 passed in O.S.No.7237/1996 on the file of the XXX
Additional City Civil Judge, Bangalore, dismissing the suit for
partition and separate possession.
These Regular First Appeals having been heard and reserved
on 19.02.2015and coming on for pronouncement of Judgment this
day, the Court delivered the following:-
9
JUDGMENT
These appeals are heard and disposed of together, as they arise out of the same judgment.
The parties are referred to by their rank before the trial court, for the sake of convenience.
2. The appeal in RFA 989/2009 is filed by the plaintiffs and the appeal in RFA 1023/2009 is filed by defendant nos.3, 5, 8 (a) and 9.
3. It was the plaintiff's case that her grandfather, Subbanna, the propositus, had five sons (1) Munihanumaiah, (2) Motappa, (3) Muniyappa, (4) Narasimhaiah, (5) Hanumaiah. Munihanumaiah died leaving behind his son, Uthanallappa, the original plaintiff, who died during the pendency of the suit. Motappa is also said to be dead and he has left behind his son, Muniswamappa. In the year 1993, Muniswamappa is said to have died leaving behind defendants 3 to 5 as his legal representatives. The third son Muniyappa is said to have died in the year 1962 leaving behind his son K.Narasimhaiah. Narasimhaiah is said to have died leaving behind 10 defendants no.6 and 7. The fourth son Narasimahiah is said to have died in the year 1984 and is survived by defendants 1 and 2. The fifth son Hanumaiah was alive as on the date of suit. The above parties constituted a Hindu joint family. The Genealogical tree of the family is as under :
GENEALOGY IN O.S.No.7237/1996 GENEALOGY SUBBANNA (Died long back) S1 S2 S3 S4 S5 Muni Motappa (dead) Muniyappa Narasimhaiah Hanumaiah Hanumaiah (died in 1962) (died 1984) (8th defendant) (dead) Wife Muniyamma (dead) son Muniswamappa wife Akkayyamma wife Doddatha- wife Akkayya-
(died - 1993) (dead) yamma (dead) mma (dead) Son Uttanallappa (plaintiff) wife Lakshmamma Son M.Narasimhaiah Children daughter -
Children (3rd Defendant) (dead) Sarojamma
1) N. Ramaiah
(Def-1)
1) Mangamma
Children Children 2)Lakshmamma
2) Krishnamma (Def-2)
1) Anuradha (Def-5) 1) Parvathamma
3) Maniraju w/o.Bachegowda,
2) M. Ramanjinappa (Def-6)
4) N.U.Nagaraju 3)Akkayyamma
3) M. Subramanya 2) Munihanumaiah,
5) Rathnamma w/o Muniyappa
(Def-4) (Def-7)
6) Padma
11
It was contended that the properties described in the Suit Schedule were properties belonging to the family. Some of the properties are said to have been the subject matter of a partition amongst the sons of Subbanna, under a partition deed dated 9.6.1965. It was however, claimed that land bearing survey no.10/11, Now 10/11A of Lottegollahalli, totally measuring 14 acres 8 guntas also belonged to the joint family, as the same was being cultivated since the time of the propositus, Subbanna, by his sons under a land lord. As there was a dispute regarding occupancy rights to the land, the same had not been included in the partition deed. It is claimed that in so far as the tenancy rights were concerned, the matter had been entrusted to the first defendant, as he was the only educated man in the family. The landlords had initiated proceedings seeking resumption. Thereafter, the owners are said to have offered to settle the dispute and convey the property in favour of the family and all the family members had contributed funds to purchase the same, however, in the name of the first defendant, only for the sake of convenience.
12
The said land was then said to have been notified for acquisition by the Bangalore Development Authority (BDA) for the formation of a layout. It was claimed that the first defendant was entrusted the task of seeking exemption from the acquisition proceedings. It was claimed that the first defendant had succeeded in having got the land denotified. Thereafter, it was claimed, that at the instance of the first defendant, who had suggested that the land could be developed for housing under a joint development agreement with a third-party, for the greater benefit of all, he was permitted to transact with a third-party. On successful completion of the project, the first defendant is said to have retained the entire benefits of the transaction and had acquired the suit property with the benefit so acquired and hence the plaintiff had claimed partition. When the defendant refused to acknowledge the claim, the suit came to be filed.
The defendant has admitted the relationship in his written statement. The partition of the properties belonging to the family in the year 1965 was also admitted. And it was contended that 13 therefore, there were no other properties left for partition. It was further admitted that the land was under cultivation by the family, but on account of the dispute raised by the land lords, the cultivation was discontinued. Later when the landlords offered to sell the land, none of the family members came forward to purchase the property and it was the first defendant alone who had purchased the same for a sum of Rs.40,000/- under a sale deed dated 8.2.1971. He is said to have initially paid a sum of Rs.27,000/- and for the balance amount, he is said to have executed a promissory note. The amount was later recovered from him by suing on the promissory note. It was hence claimed that the suit property was purchased by him exclusively from his own funds. It was claimed that out of the suit schedule item no.1, he had sold an extent of 1 acre 10 guntas to one Muniyellappa and brothers and the first defendant had formed a housing layout in an extent of 3 acres and 10 guntas in the year 1980. An extent of 1 acre 10 guntas had been left by the defendant for the formation of the road. He had then sold 6 acres of land in favour of M/s RMV Clusters, who had developed the property. A further 1 14 acre and 20 guntas was sold to one K.G Krishnamurthy. It was hence claimed that there did not remain any extent of the total extent of 13 acres 10 guntas of land in item no.1 of the suit Schedule, in his hands. In so far as item no. 2 of the suit schedule was concerned, it was his self-acquired property purchased with funds supplemented by his wife and that it was not joint family property. It was contended that the suit was mischievously filed raising a false claim and that it was barred by time.
Defendants 3 to 5 who had filed a separate written statement, had supported the plaintiff's claim. Similarly, defendant no.8 had also supported the case of the plaintiff.
The trial court had framed the following issues :
"1. Whether the 1st defendant proves the family partition on 9.6.1965 referred in his written statement in which plaint schedule properties have been divided?
2. Whether the plaintiffs 2 to 4 prove that only legal heirs of Munihanumaiah and Muniyappa were divided in the year 1965 and the suit properties are the joint family properties as pleaded?
3. Whether the 1st defendant proves that 1st item suit property in the plaint schedule is his self acquired property as contended in paragraphs 5 to 8 of the written statement?15
4. Whether the 1st defendant proves that he has sold certain extent of land in suit item No.1 and the purchasers are in possession as contended in paragraphs 10 and 11 of the written statement?
5. Whether the 1st defendant proves that the 2nd item in the plaint schedule is the self-acquired property of himself and his wife as contended?
6. Whether the plaintiffs 2 to 4 prove that the property bearing Sy.No.1 in Chikkamaranahalli has been purchased by the 1st defendant out of the earnings of the joint family nucleus as pleaded by them?
7. Whether the 1st defendant proves that the land in Sy.No.1/1 of Chikkamaranahalli is his self acquired property as contended?
8. Whether the plaintiff No.4 proves that the properties in Sy.Nos.7, 8 and 9/2 of Lottegollahalli are the joint family properties as pleaded?
9. Whether the legal representatives of the 1st plaintiff are entitled to share which they claim?
10. Whether the plaintiffs 2 to 4 are entitled for the shares which they claim?
11. Whether the plaintiffs proves their joint possession of the suit properties, if not what is the effect?
12. Whether the 1st defendant proves that purchasers are in possession of certain extent of land in the suit properties as contended?
13. Whether the Court fee paid is improper and insufficient?16
14. To what relief?
Additional Issues:
1. Whether the 1st defendant proves that the suit is barred by limitation?
2. Whether 1st defendant proves that the suit is bad for non-joinder of necessary parties?"
Issues no.1, 3 to 5, 7 and 12 were held in the affirmative and the other issues were held in the negative.
4. The trial court found that the relationship of the parties was not disputed and the division of the ancestral properties of the parties in the year 1965 was also admitted. The only controversy was as regards item no.1 of the suit schedule properties, which was claimed to have remained without being divided as it was the subject matter of a dispute with the land lords, under whom the family members were said to be tenants cultivating the land and the landlords were seeking resumption of the same. The trial court had thus observed that the said item of property was not ancestral property, but was tenanted by the family and hence was not available for partition in the year 1965.
17
It is then found that it is also the case of all the parties that the land lords had come forward to sell the land. It is found by the trial court that when such a proposal was made in the year 1971, the joint family status did not exist. It is also found that the said land was purchased in the name of defendant no.1, who was a junior member of the family, who had claimed to have purchased it with his own funds. Hence, there could be no presumption, as in the case of a purchase possibly by the Kartha, that it was purchased on behalf of the family. Therefore, the burden lay on the plaintiff and other members claiming otherwise, to prove that it was purchased by all of them in the name of defendant no.1, though they had separated and when there was no joint status. The mere fact that the land was jointly tenanted, did not raise any such presumption either.
It is noticed by the trial court that there is no indication as to how much money was contributed by each of the parties in purchasing the property. It was admitted that after 1965, all the brothers were living separately and they had also sold some of the properties that had fallen to their respective shares. It was also 18 admitted that land revenue in respect of the property was not paid by any of the others except defendant no.1. It was thus concluded that having regard to the consistent evidence by PW-1 to PW-4, that they could not state the quantum of contribution by their predecessors in the purchase of the said property, their mere assertion that the property had been purchased in the name of defendant no.1 for the sake of convenience, would not be sufficient to establish that it was so.
From the contents of the sale deed pertaining to the property, it is found that the same is exclusively executed in favour of the first defendant and that there is a mention of the 1965 partition in the family and all the brothers had agreed that the property could be sold in favour of defendant no.1. They had all affixed their signatures as witnesses to the deed. The trial court has hence accepted the claim of defendant no.1 that he had mustered the funds to purchase the property in his own name and had involved the others in the execution of the deed, by way of abundant caution to 19 avoid future complications. The court has held that it was probable that defendant no.1 had acquired the property on his own behalf.
It is held by the court that the purchase was made six years after the partition in the family and the land was agricultural land with no developmental prospects for non-agricultural purposes at that point of time. It is only after the BDA had proposed to acquire, that the land appreciated in value.
The contention that defendant no.1 was a student of MBBS at the time of purchase and hence would not have had the means to purchase the land, has been negated on the positive proof of defendant no.1 having paid Rs.27,000/-, which he had raised from private financiers, at the time of sale and having issued a promissory note for the balance sale price and on default, the vendors having initiated a suit for recovery of money in O.S.43/1982 and the documents produced in that regard has been held as sufficient proof of defendant no.1 having purchased the same in his own capacity. The documents produced by defendant no.1 to indicate his exclusive 20 and continued position stood established. As per Exhibit D-17, a portion of the land is found converted for non-agricultural purposes. The proposal for acquisition of the land by the BDA and the later withdrawal from such acquisition proceedings is evidenced by Exhibits D-43 to 45. The trial court has observed that the defendant had produced particulars of the persons to whom the land had been sold in several parcels and had also produced evidence to show that the land was completely built up and was not available for division as it was in the possession of third-party owners.
The trial court has then dealt with other incidental issues before dismissing the suit with costs.
5. It is in the face of the above reasoning and findings of the trial court, that the learned Senior Advocate, Shri Ashok Haranahalli, appearing for the counsel for the appellants seeks to canvas the following grounds of appeal.
That there was no proof of the alleged partition of the year 1965. Unless the properties so divided by metes and bounds was 21 established, it could not be presumed on alleged admissions that there was a partition.
It was not in dispute that the land in question was once jointly tenanted by the family members and it would ipso facto raise a presumption that the subsequent purchase would also be for the common benefit, though purchased in the individual name of the first defendant. It is also sought to be contended that there is no indication that all the parties had admitted the partition of the year 1965. Reference is also made to certain agreements entered into jointly by the parties along with the first defendant, with third-parties in respect of certain lands, which would indicate that they had continued to be joint .
6. The learned counsel for the appellants in RFA 989/2009 would canvass grounds, which were in fact contentions raised in the plaint.
7. As found by the trial court, the witnesses examined on behalf of the plaintiffs have all admitted that there was a partition in the year 1965. It was their case that it was only the land bearing 22 Sy.No.10/11A that had not been partitioned. It is that controversy that has been addressed and answered by the trial court in favour of defendant no.1.
As seen from the judgment of the court below, all contentions urged have been dealt with cogently and with reference to documents on record. Hence, the reasoning of the trial court and the findings arrived at cannot be found fault with. There is not much substance in the grounds raised in these appeals. Defendant no.1 has firmly established his defence, as rightly held by the trial court.
The appeals lack merit and are dismissed.
Sd/-
JUDGE KS*/nv*