Karnataka High Court
Krishnayya Gowda vs K G Nagaraja on 6 March, 2013
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
R.F.A.NO.482/2007 (PAR).
BETWEEN:
1. KRISHNAYYA GOWDA,
AGED ABOUT 71 YEARS,
S/O LATE OBAYYA GOWDA,
R/O KUDINALLI, HALAMUTTUR VILLAGE,
HARIHARAPURA HOBLI,
KOPPA TALUK,
CHIKKAMAGALUR DISTRICT-577101.
1(a) SMT LAKSHMAMMA,
MAJOR,
W/O LATE KRISHNAYYA GOWDA.
1(b) SMT VIJAYA,
MAJOR,
W/O K.H.VENKATESH.
1(c) SMT K.K.LATHA,
MAJOR,
W/O K.K.RAMESH.
1(d) SMT K.K.SHOBHA,
MAJOR,
W/O SRI.PRASHANTH.
1(e) SRI POORESHA,
MAJOR,
S/O KRISHNAYYA GOWDA.
APPELLANTS 1(b) TO 1(e) ARE CHILDREN
OF LATE KRISHNAYYA GOWDA,
R/AT KUDINAHALLI,
HALMUTTUR VILLAGE/POST,
KOPPA TALUK, CHIKMAGALUR DIST. ... APPELLANTS
(AMENDED V.C.O.DT. 11/03/2011)
-: 2 :-
(BY SRI: T.N.RAGHUPATHY, AND SMT.G.JAYASHREE, ADVS.)
AND:
1.K.G.NAGARAJA,
AGED ABOUT 52 YEARS,
WORKING AT MYSORE MINERALS LIMITED,
NO.408, MAHENDRA ARCADE,
K.R.ROAD, MANGALORE-575001.
2.SMT. K.G.JAYA,
D/O GOPALA GOWDA AND
W/O D.L.NEMAPPA,
SINCE DECEASED BY HER LRS:
(a) D.L.NEMAPPA,
AGED 50 YEARS,
HUSBAND OF K.G.JAYA
(b) NAVEEN,
AGED 23 YEARS,
S/O D.L.NEMAPPA AND
LATE K.G.JAYA,
(c) KUM. NAVYA,
AGED 17 YEARS,
D/O LATE K.G.JAYA,
(d) KUM. NIVEDA,
AGED 15 YEARS,
D/O LATE K.G.JAYA,
R2(a) IS THE HUSBAND,
2(b) TO (d) ARE THE CHILDREN OF
LATE K.G.JAYA, SHE DIED ON
6/2/2007.
R-2(c) AND (d) ARE MINORS,
REP. BY GUARDIAN AND FATHER
RESPONDENT 2(a)
ALL ARE RESIDING AT GOCHAHALLI VILLAGE,
KUNCHABYLU POST,
SRINGERI TALUK,
CHIKKAMAGALUR DISTRICT-577101.
3.SMT.VANAJAKSHI,
AGED ABOUT 66 YEARS,
-: 3 :-
W/O SIDDAPPA GOWDA,
D/O LATE OBAYYA GOWDA,
R/AT HONNANI, HUNASOLLI
HAROGOLIGE POST,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT-581205. ... RESPONDENTS
(BY SRI: VIGHNESHWAR.S.SHASTRI, ADV. FOR C/R1)
*****
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.15.09.2006 PASSED IN
OS.NO.40/1998 ON THE FILE OF THE II ADDL.CIVIL JUDGE
(SR.DN.) SHIMOGA, DECREEING THE SUIT FOR PARTIION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The first defendant in O.S.No.40/98 has filed this appeal, assailing the judgment and decree dated 15/09/2006, passed by the II Addl. Civil Judge (Sr.Dn.) at Shimoga.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
It is the case of the respondent - plaintiffs that their father Gopala Gowda and the defendant are the sons of Obayya Gowda, they constituted a Hindu -: 4 :- undivided family owning and possessing the schedule "A" and "B" properties. Obayya Gowda died leaving behind his sons, Gopala Gowda and the defendant and also the substantial portions of the suit schedule property. Later, Gopala Gowda died in the year 1955 as a member of the joint family leaving behind the plaintiffs and the defendant. The plaintiffs and defendant continued to be the members of the joint family, enjoying and cultivating the suit schedule properties jointly under the management of the defendant. That some of the suit schedule properties are the leasehold lands, occupancy rights of which have been made in the name of the defendant as manager of the family. Some leasehold properties are acquired for and on behalf of the family and have been enjoyed jointly by the family. The plaintiffs not being satisfied with the management of the family affairs had been demanding disclosure of accounts by the defendant who went on evading. Therefore, the suit for partition and separate possession has been filed by the plaintiffs.
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On service of suit summons the first defendant appeared and filed his written statement, admitting the relationship between the parties but he contended that his father had a daughter by name Vanajakshi, who has not been made a party to the suit in order to deny her a share in the suit schedule property. It was denied that the father of the plaintiffs and the first defendant were members of the joint family and that "A" and "B" schedule properties are joint family properties. It was admitted that the father of the plaintiffs had died in the year 1955 but he had not left behind the suit schedule properties. It was admitted that occupancy rights had been confirmed in his favour in respect of some properties. But it was denied that the leasehold properties were acquired for and on behalf of the joint family and that they have been in joint enjoyment of the suit properties. The first defendant contended that the suit was bad for non-joinder of all parties, it was specifically contended that during the lifetime of Gopala Gowda and Obayya Gowda, the joint family properties were divided and -: 6 :- Gopala Gowda has been residing separately with his wife. It was contended that the first plaintiff is the posthumous child and is brought up by the father of the defendant; that after the death of the plaintiffs' father and the plaintiffs' grand father, this defendant was the only person in the family looking after the properties of the plaintiffs' father and then the plaintiffs were brought up by providing education; that the first plaintiff is a Graduate and he has joined service in an International Hotel, Bangalore, and subsequently, shifted to Mysore Minerals in the year 1984 and that he is working at Konandur and drawing a salary of more than Rs.5,000/- per month. The plaintiffs used to take the usufructs of their properties from the beginning from the defendant. That his father had given share in Sy.No.141/5, 139/4 and 141/7 and the income of these properties are used for his maintenance. That the plaintiffs have no right to claim share in all the suit schedule properties; that Item Nos.1 to 6 of the "A" Schedule properties are in the joint names of the plaintiffs and defendant as -: 7 :- originally the said lands were in the name of the father of the defendant. Issue Nos.7 and 8 are the tenanted lands and all other properties are his self acquired properties. Item No.10, which is a residential RCC and tiled house is also his self acquired property; that in respect of land bearing Sy.No.270, situated at Ghavalumane village, Hartharpura Hobli, Koppa Taluk, there is a litigation pending before the High Court against one Giriyappagowda; that the defendant has raised huge sums of money towards the improvement of the properties by borrowing loan of Rs.8 lakhs from Bank; that he has borrowed loan of Rs.75,000/- from LIC for improvement of the lands. He has expended amounts towards the performance of marriages. That the plaintiff is getting a salary of more than Rs.5,000/- per month and that he is earning income from his father's share. That the plaintiff is living comfortably and intentionally he has filed the suit seeking partition in order to cause harassment to the defendant. That the plaintiffs have borrowed a sum of Rs.75,000/- from him in February 1998, for the -: 8 :- purchase of a site at Shimoga. The said amount has not been returned and instead, the suit has been filed. Therefore, the defendant sought for dismissal of the suit.
The plaintiffs thereafter, impleaded Vanajakshi as the second defendant. She has appeared and filed her written statement, admitting the relationship between the parties. According to her, the plaintiffs and the defendant No.1 have partitioned the properties orally and have been cultivating the lands separately; that the properties included in the schedule are neither properties of the plaintiffs nor the properties of the defendant, she being the daughter is entitled to her share in her father's property. The plaintiffs are not entitled to half share as claimed. Therefore, she contended that the suit is not maintainable but she is also entitled to a share in the suit schedule properties.
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3. On the aforesaid pleadings, the trial Court framed the following issues and additional issues for its consideration:-
"1. Whether plaintiffs prove they and defendants constitute a joint family?
2. Whether plaintiffs prove the suit schedule properties are the joint family properties of plaintiffs and defendants?
3. Whether 1st defendant proves plaintiff's father Gopala gowda due to difference with defendants' father separated and obtained his share in joint family as pleaded in written statement of defendant no.1?
4. Whether 1st defendant proves acquisition of exclusive right over item no.7, 8 of 'A' schedule properties like rest of the properties claimed in written statement?
5. Whether plaintiff is entitled for a share in the suit properties? If so, what is the share of the parties to the suit in the suit properties?
6. Whether plaintiff is entitled for mesne profit. If so, at what rate?-: 10 :-
7. What order or decree?
Additional Issues framed on 11.2.2002
1. Whether defendant no.1 proves, item-11 of plaint schedule is a Government land encroached by him and as such not available for partition?
2. Whether defendant no.1 further proves, pumpset installed in item no.11 of plaint schedule is his self acquisition?"
4. In support of their case, the plaintiffs examined two witnesses and produced 37 documents, which were marked as Exs.P.1 to P.37, while the defendants examined four witnesses and produced 32 documents, which are marked as Exs.D.1 to D.32. On the basis of the said evidence, the trial court answered Issue Nos.1, 2 and 5 in the affirmative, Issue Nos.3 and 4 and additional Issue Nos.1 and 2 in the negative and decreed the suit of the plaintiffs by holding that the plaintiffs are entitled to 4/9th share in the "A" schedule properties by metes and bounds and that the defendant is entitled to 1/9th share in all the -: 11 :- suit schedule properties except Issue No.9 and a separate enquiry be held with regard to the mesne profits under Order 20 Rule 12 of CPC. Being aggrieved by the said judgment and decree, the first defendant is in appeal.
5. I have heard the learned counsel for the parties and perused the material on record.
6. It is contended on behalf of the appellants that the trial Court was not right in holding that the suit schedule properties are the joint family properties of the plaintiffs and defendants and that they constituted a joint family property; that on account of certain differences between the original propositus Obayya Gowda, the grand father of the plaintiffs and the father of the defendants, there was a partition of the suit schedule properties and the said partition is evidenced by Ex.D.12 and as a result, the father of the plaintiffs separated himself with certain properties. Therefore, the suit schedule properties never -: 12 :- continued to be joint family properties. He also contended that the trial Court was not right in ignoring Ex.D.12 i.e., 'Palu patti' dated 25/03/1954 and by holding that the parties continue to remain as undivided Hindu family and that the suit properties were the joint family properties. He therefore, submitted that the trial Court was not right in decreeing the suit. Drawing attention to the additional Issue Nos.1 and 2, he contended that Item No.11 of the "A" schedule property has been incorporated by the defendant and that it is the defendant who has invested on the said land by borrowing loan and the same would not be a subject matter of the partition. He therefore, contended that the judgment and decree of the trial Court be set aside and the suit filed by the plaintiffs be dismissed.
7. Per contra, learned counsel for respondents supporting the judgment and decree of the trial Court, contended that the trial Court was right in not giving any credence to Ex.D.12, which is a got up document, -: 13 :- for the purpose of the case. Infact, D.W.2 in his cross- examination has admitted that the said document was prepared after the death of the plaintiffs' father. Therefore, the signature of the plaintiffs' father on the said document is not his signature. The said document has been admitted only for collateral purpose, which is an unregistered partition deed styled as "Palu patti". Therefore, the trial Court was right in not admitting the said document except for a collateral purpose. He further contended that the evidence on record would go to show that despite Ex.D.12 - Palu patti, the usufructs of the suit items have been enjoyed by all the members of the joint family. In support of this contention, he has specifically drawn my attention to Ex.P.2, which is a certified copy of the plaint and an interim application and affidavit that have been filed in O.S.No.74/92 by defendant No.1 with regard to Sy.No.141/6 measuring 14 Guntas of land at Halamathur village and a suit has been filed against third parties and at Para.2, it has been stated therein that defendant No.1 and plaintiff No.1 are living under -: 14 :- one roof and that defendant No.1 is the kartha of the family managing the joint family properties. This admission in the year 1992 would clearly reveal that Ex.P.12. is a fabricated document. He therefore contended that there is no merit in this appeal.
8. Having heard the learned counsel on both sides, the only point that arises for my consideration is as to whether the judgment and decree of the trial Court calls for any interference in this appeal.
9. From the material on record, the relationship between the parties is not in dispute. That Obayya Gowda the grandfather of the plaintiffs and father of defendants is the original propositus, who died in the year 1955. He had three children, Gopala Gowda - father of the plaintiff, Krishnayya Gowda - defendant No.1 and Vanajakshi - defendant No.2. It is also not in dispute that Gopala Gowda died in the year 1955 even prior to the death of Obayya Gowda.
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10. Ex.P.4 is the genealogical tree. Exs.P.5 to 9 are the Index of lands and Records of Rights. Ex.P.17 is Form No.7 filed in respect of Item No.2. Ex.P.16 is the certified copy of the order granting occupancy rights. While, Ex.P.18 is the Form No.10. Ex.P.29 is the Lease Deed in respect of Item No.2. Ex.P.32 is the certified copy of the plaint, interim application and the affidavit filed in O.S.No.74/92. Aforesaid are some of the documents produced by the plaintiffs.
11. The defendant No.1 on the other hand has produced Ex.D.12, which is a palu patti dated 25/03/1954 and relied upon the orders at Exs.D.15, 16 and 26.
12. It is the case of the plaintiffs that the plaintiffs and defendants constitute a joint family and that there has been no partition in the family. The defence of the first defendant with regard to there being a joint family or an undivided family and the suit schedule properties are joint family property is that, -: 16 :- there was a division in the family by virtue of Ex.P.12
- Palu patti dated 25/03/1954 under which, certain properties were given to the share of the father of the plaintiffs and therefore, there is no jointness in the family and that the suit schedule properties cannot be joint family properties. In order to establish the prior partition between the parties or in other words, the separation of the father of the plaintiffs from the joint family Ex.D.12 has been produced and the same is dated 25/03/1954, which is on a white sheet of paper and which is not a registered instrument. No doubt, there could be a division in the family orally. But when the partition takes place under an instrument, then it requires registration. However a memorandum or a recording of an earlier partition would not call for registration. The trial Court has however not believed this document not because it is an unregistered or that it is not stamped but on the basis that subsequent to this document dated 25/03/1954, the other evidence on record would collectively prove that the family continued to remain joint and that the suit -: 17 :- schedule properties have been enjoyed jointly by the members of the family. This in fact is established by the various documents which have been produced by the plaintiffs particularly Ex.P.2 - Plaint in O.S.No.74/92, the contents of which would clearly negate the defence of the appellants that the family was not joint in status and that the suit schedule properties were not the joint properties. On the other hand, the defendant has failed to produce any document in order to prove that after the partition of the suit schedule properties, there were mutation entries made in their individual names and that they were enjoying the properties independenty.
13. Another contention which has been raised by the counsel for the appellants is with regard to the fact that additional Issue Nos.1 and 2 with regard to item No.11 of the suit schedule properties i.e., Government land, which is admittedly encroached by the defendant. It is the contention of the defendant No.1 that it is he, who has improved the said land by -: 18 :- investing monies by raising loans. It is stated that an application has been filed for regularizing the cultivation, in the name of defendant No.1. Ofcourse, the said regularization is yet to be ordered but the trial Court has not accepted the case of defendant No.1 with regard to the said item to be excluded from the joint family properties and to treat it as separate property of defendant No.1 for the reason that defendant No.1 has not produced any evidence to show that he had any independent source of income in order to make investments or cultivate the said encroached land in Item No.11 of the "A" schedule properties. Therefore, the additional Issue Nos.1 and 2 have also been rightly answered by the trial Court against the defendant No.1.
14. The trial Court has therefore, rightly held that the plaintiffs and the defendants constitute a joint family and that the suit schedule properties are the joint family properties of the plaintiffs and the defendants and that there was no separation of the -: 19 :- father of the plaintiffs' by virtue of Ex.P.12. That the plaintiffs are entitled to a share in the suit properties and that they are entitled to mesne profits, including the encroached portion as directed by the trial Court. Therefore, the judgment and decree of the trial Court is affirmed. The appeal is accordingly, dismissed.
Parties to bear their respective costs.
Sd/-
JUDGE.
*mvs